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Full text of "International law situations with solutions and notes, 1931"



n \ •■ ■ si ese 



NAVAL WAR COLLEGE 



International Law 
Situations 



WITH SOLUTIONS AND NOTES 



1931 



* 



UNITED STATES 

GOVERNMENT PRINTING OFFICE 

WASHINGTON : 1932 



For sale by the Superintendent of Documents, Washington, D. C Price $1.00 (cloth) 



PREFACE 

This annual volume, prepared by George Grafton 
Wilson, LL. D., professor of international law at Har- 
vard University, covers the situations and discussions 
on this subject by the War College class of 1932. Pro- 
fessor Wilson's method has been to propound situations 
involving timely questions and after critical discussion to 
organize the material for publication. This procedure 
has led to the production of a series of studies of live 
questions on the maritime phases of international law, 
unique in design, but which should prove useful to offi- 
cers and others whose profession takes them within the 
realm of international law. The situations in this volume 
touch upon many debatable aspects of the use of coastal 
waters. 

In order to increase the usefulness of this publication, 
suggestions and criticism will be welcomed by the War 
College covering both topics and situations. 

Harris Laning, 
Rear Admiral, United States Navy, 
President United States Naval War College. 
June 17, 1932. 
it 



CONTENTS 

Page 

Situation I. — Neutrality and aircraft 1 

Solution (a) and (jb) 1 

Notes — 

Definitions 1 

Early regulation of aerial navigation 2 

Institute of International Law, 1927 2 

Later regulations 3 

Conditions of registration 4 

Communication by air 4 

Indirect limitation on aircraft 5 

Proclamation regarding Panama, 1914 5 

Limitation, treaty of Versailles, 1919 5 

Laws of the United States 6 

Prohibited carriage 7 

Regulations in general 7 

Commission of Jurists, 1923 7 

League of Nations Commission 9 

Draft Convention, 1930 9 

Application of rules 10 

American-German correspondence, 1915 10 

Neutrality proclamation, 1914 12 

Supplies 13 

British-Dutch correspondence, 1916 14 

British-Dutch correspondence, 1917 18 

Transformation of civil aircraft 21 

General principles, 1919 22 

Questions in House of Commons. 23 

Repairing in neutral port 24 

The Glasgow, 1914 25 

The Geier and the Locksun 26 

Spaight's opinion 29 

Internment 30 

Seaplane rescue and repairs 31 

Solution (a) and (b) 32 

Situation II. — Neutrality and territorial waters 33 

Solution (a), (1) and (2) 34- 

Solution (6) 34 

m 



IV CONTENTS 

Situation II. — Neutrality and territorial waters — Con. Page 
Notes — 

Historical bays 34 

Admiral Sperry's attitude, 1907 34 

Cuba 35 

Sweden 37 

Scandinavian decrees 37 

Instructions and regulations prior to 1914 38 

Norwegian territorial waters 38 

Differing neutrality rules 42 

Special provisions 43 

The Anna, 1805 44 

British position, 1924 45 

Hague report, 1923 46 

League of Nations Committee, 1926 48 

League of Nations draft, 1926 48 

Attitude of Portugal, 1926 49 

Sweden, 1926 50 

Norwegian opinion, 1927 51 

Control of straits 52 

The Bosphorus and Dardanelles 53 

Danish Sounds 54 

Straits of Magellan 55 

Straits connecting open seas 57 

Treaties and conventions 58 

Treaty of Copenhagen, 1857 60 

Bosphorus and Dardanelles, 1920-1923 61 

Islands and archipelagoes 64 

Attitude of the United States 65 

Spitsbergen 65 

Legislation and decrees • 66 

Difference of opinion 66 

The Fagernes 71 

Development of aerial rules . 73 

Submarines in 1916 73 

British position 75 

Allied attitude on submarines, 1916 76 

Reply of United States 77 

Disregard of neutral obligations 78 

Violations of neutrality 78 

Acts in marginal sea 79 

Opinion of Mr. Adams on supply of coal 80 

Opinion of Sir Alexander Cockburn 82 

Consideration in 1912 85 

Danish Order, 1912 85 



CONTENTS V 

Situation II. — Neutrality and territorial waters — Con. Page 

Notes — Continued. 

Opinion of Professor Holland 86 

Award of the Tribunal 87 

Restatement of rule 87 

Supplies 88 

British reply 89 

Self-defense, the Caroline 90 

Self-defense, general 91 

Conclusions 92 

Solution (a), (1) and (2) 92 

Solution (6) 93 

Situation III. — Belligeiency and maritime jurisdiction 94 

Solution (a) and (6) 94 

Situations I and II, 1931 95 

Discussions at Naval War College 95 

Geneva Arbitration, 1871 96 

Early American cases 97 

The Twee Gebroeders 99 

German Ordinance, 1909 100 

Norwegian coast 101 

The Bangor, 1915 102 

The Dresden, 1915 104 

Inviolability of neutral waters 107 

The Thor, 1914 108 

Liability of the Petro 109 

Submerged reefs 109 

Neutral rights and duties 109 

Protective jurisdiction 110 

Belligerent control of neutral vessels 111 

Salvaging 112 

Discussion, 1930 113 

Obligation to rescue 113 

Solution (a) and (6) 113 



Situation I 

NEUTRALITY AND AIRCRAFT 

States X and Y are at war. Other states are neutral. 

(a) A dirigible, belonging to the air forces of the 
State X, arrives at a commercial airport of State Z, and 
the commander requests that the hydrogen, with which 
it is filled, be replaced by helium, purchased before the 
war, but in storage undelivered at the airport. 

What reply should the government of State Z give? 

(b) A naval aircraft of State X of the largest sea- 
plane type is forced down from mechanical causes in 
the open sea off the coast of State Z. Help is requested 
and the plane is towed by a local vessel to safe moor- 
ings within harbor of Z. In the quiet waters of the 
harbor, the crew effect necessary repairs in 24 hours, 
and the commanding officer requests permission to 
proceed. 

What reply should the government of State Z give? 

solution 

(a) The government of State Z should deny the re- 
quest of the commander of the dirigible of the air forces 
of State X to replace the hydrogen by helium. 

(b) The government of State Z should intern the 
seaplane and its personnel. 

Definitions. — Aircraft as used in air navigation in the 
Panama Canal Zone is defined as " any contrivance now 
known or hereafter invented, used, or designed for navi- 
gation of or flight in the air, except a parachute or other 
contrivance designed for such navigation but used pri- 
marily as safety equipment." (Regulations to Govern 

1 



Z NEUTRALITY AND AIRCRAFT 

Air Navigation in the Canal Zone, September 22, 193 l y 
sec. 11 and Appendix 2.) 

Air space is " construed to mean the air vertically over- 
lying any area that may be designated," and " The Pan- 
ama Canal Zone including the ' three-mile limit ' " was 
designated in 1926 " to be a Military Airspace Reserva- 
tion." (44 U. S. Stat. 568.) 

Early regulation of aerial navigation. — While there 
have been advocates of the doctrine of freedom of the 
air, in practice, states have tended to regulate the use 
of superjacent space by aircraft. Early regulations 
were mainly of the nature of national police control to 
prevent damage to property and persons by balloons. 
For many years, aerial navigation was for the most part 
a spectacular experiment involving risks against which 
each state endeavored to provide. National regulation 
therefore preceded international. 

Discussion of international regulations was carried on 
before long-range flights were common. The Institute 
of International Law at its session in Ghent in 1906 
adopted in its proposed international regulation of 
wireless telegraphy as "Article 1. The air is free. 
States have over it, in time of peace and in time of Avar, 
only the rights necessary for their preservation." Sub- 
sequent study by the institute materially changed the 
point of view and at the meeting at Madrid in 1911 an 
article on the legal status of aircraft was adopted as 
follows : 

3. International aerial circulation is free, saving the right 
of subjacent States to take certain measures, to be determined, 
to ensure their own security and that of the persons and prop- 
erty of their inhabitants. (Resolutions of the Institute of 
International Law, Carnegie Endowment for International Peace, 
p. 171.) 

Institute of International Law^ 1927. — The institute 
at the session of 1927 at Lausanne adopted, after dis- 
cussion of the conflicting theories of the sovereignty and 



REGULATIONS 6 

of the freedom of the air, the following as a proposed 
regulation of aerial navigation: 

Art. 1. II appartient fi chaque Etate de regler l'usage de l'air 
au-dessus de son territorie, en tenant compte d'une part des 
necessites de la circulation aerienne internationale (atterrissage 
compris), d'autre part, des necessites de la securite nationale, 
tant au point de vue militaire, douanier, sanitaire, qu'au point de 
vue de la protection des personnes et des biens de ses habitants. 

Art. 3. N'ont pas droit au regime de libre circulation inter- 
nationale, les aeronefs affectes au service de la puissance pub- 
lique d'un Etat et les aeronefs faisant partie du materiel de 
guerre d'un Etat ou commande par un militaire commissionne 
k cet effect. (33 Annua ire, Institut de Droit International, vol. 
3, pp. 337, 338.) 

Later regulations. — The freedom of aerial naviga- 
tion was not generally accepted, however, and states 
made regulations restricting the use both of national 
and foreign aircraft. Sometimes, even, the regula- 
tions of adjoining subdivisions of a state were not in 
conformity. The convention relating to the regulation 
of air navigation, signed at Paris, October 13, 1919, 
states : 

Art. 1. The high contracting parties recognize that every power 
has complete and exclusive sovereignty over the air space above 
its territory. 

For the purpose of the present convention the territory of 
a state shall be understood as including the national territory, 
both that of the mother country and of the colonies, and the 
territorial waters adjacent thereto. (1929, Naval War Col- 
lege, International Law Situations, p. 26.) 

The same principle was affirmed at Havana in 1928 
in the convention on commercial aviation. 

National and international rules for registration, in- 
demnification, flight, landing, etc., have rapidly de- 
veloped. Government control has been easy because 
states seeking to dominate or lead in aviation have will- 
ingly granted subsidies to companies engaged both in 
manufacture and operation of aircraft. France seems 
to have increased subsidies so that the amount for 1929 



4 NEUTRALITY AND AIRCRAFT 

was more than one hundred times the amount of 1919. 
Other states have followed varying systems of aiding 
private or quasi-private companies and there are differ- 
ing opinions as to the merits of the respective systems. 

Conditions of registration. — The conditions of regis- 
tration vary and may in some instances determine the 
treatment to which an aircraft is liable in a foreign state 
whether that state be belligerent or neutral. In the case 
of the Panama Canal Zone certain prerequisites condi- 
tion licensing and registration. 

1. An aircraft, to be entitled to license and registry, must be 
airworthy and equipped in accordance with the requirements of 
the Canal Zone and owned by 

(a) A citizen of the United States. 

(&) The Government of the United States, a State, Territory, 
or possession, or a political subdivision thereof. 

Undoubtedly war would be a " time of emergency " 
and it would be difficult for a neutral to determine long 
in advance how a modern machine like a private air- 
craft even thus registered should be treated. An aircraft 
of an enemy at the outbreak of war in a belligerent 
state might be seized and such an aircraft subsequently 
entering belligerent jurisdiction would be likewise 
seized. 

Communication by air. — Whatever the differences of 
opinion in regard to the systems and regulation of aerial 
communication, there is no difference of opinion as to 
the present necessity of such communication both in 
time of peace and in time of war. While in the early 
stages of the development of aerial communication states 
viewed with comparative indifference the use of the su- 
perjacent air, now this use is in many states jealously 
guarded as would be a railway right of way across its 
territory, and foreign airlines are in general under re- 
strictions prescribed in article 15 of the convention of 
1919 which provides that " The establishment of inter- 
national airways should be subject to the consent of the 
states flown over." In some respects the slogan " free- 



LIMITATION OF AIRCRAFT 5 

dom of the seas " is being superseded by the slogan 
" fredom of the air," but is meeting with little approval. 

Indirect limitation on aircraft. — While there may in 
some states be no direct limitation upon the use or num- 
ber of foreign aircraft within their territorial jurisdic- 
tion, indirect limitation may arise through rules requir- 
ing landing at certain places, etc., in the time of peace. 
Naval powers have also been limited indirectly by con- 
ventions such as the Washington Convention of 1922 pre- 
scribing the character and the use of naval vessels as air- 
craft carriers. 

Proclamation regarding Panama, 191Jf. — One of the 
earliest statements made by the United States in regard 
to aircraft was in the proclamation of November 13, 
1914, concerning the neutrality of the Panama Canal 
Zone. While the preamble states that the United States 
exercises sovereignty in the land and waters of the zone, 
the articles assume the right to exercise authority in 
the superjacent air. 

Whereas the United States is neutral in the present war and 
whereas the United States exercises sovereignty in the land and 
waters of the Canal Zone and is authorized by its treaty with 
Panama of February 26, 1904, to maintain neutrality in the cities 
of Panama and Colon, and the harbors adjacent to the said 
cities: * * * 

Rule 15. — Aircraft of a belligerent power, public or private, are 
forbidden to descend or arise within the jurisdiction of the United 
States at the Canal Zone, or to pass through the air spaces above 
the lands and waters within said jurisdiction. 

Rule 16. — For the purpose of these rules the Canal Zone includes 
the cities of Panama and Colon and the harbors adjacent to the 
said cities. (1915, Naval War College, International Law Topics, 
P. 11.) 

Limitation, treaty of Versailles, 1919. — Part V of the 
treaty of Versailles, 1919, has as its introductory clause : 

In order to render possible the initiation of a general limita- 
tion of the armaments of all nations, Germany undertakes strictly 
to observe the military, naval and air clauses which follow. 
(1919, Naval War College, International Law Documents, p. 70.) 



6 NEUTRALITY AND AIRCRAFT 

In carrying out this purpose, article 198 prescribed 
that "The armed forces of Germany must not include 
any military or naval air forces." 

Other articles to remain in force till January 1, 1923, 
unless Germany had previously become a member of 
the family of nations, gave the Allied and Associated 
Powers privileges similar to those of German aircraft. 

Article 313. The aircraft of the Allied and Associated Powers 
shall have full liberty of passage and landing over and in the 
territory and territorial waters of Germany, and shall enjoy the 
same privileges as German aircraft, particularly in case of 
distress by land and sea. 

Article 314. The aircraft of the Allied and Associated Powers 
shall, while in transit to any foreign country whatever, enjoy 
the right of flying over the territory and territorial waters of 
Germany without landing, subject always to any regulations 
which may be made by Germany, and which shall be applicable 
equally to the aircraft of Germany and to those of the Allied 
and Associated countries. 

Article 315. All aerodromes in Germany open to national public 
traffic shall be open for the aircraft of the Allied and Associated 
Powers, and in any such aerodrome such aircraft shall be treated 
on a footing of equality with German aircraft as regards charges 
of every description, including charges for landing and accommo- 
dation. (Ibid, p. 156.) 

These limitations were not such as the Allied Powers 
would propose as the basis for general regulations to 
prevail among themselves. Indeed, .the Allied Powers 
would probably not wish such regulations to prevail 
even for themselves after normal relations were rees- 
tablished as geographical and other conditions might 
give unequal advantages to some of their number. 

Laivs of the United States. — By an act of May 20, 1926, 
the use of aircraft was prescribed and it was stated 
that — 

The Congress hereby declares that the Government of the 
United States has, to the exclusion of all foreign nations, com- 
plete sovereignty of the airspace over the lands and waters 
of the United States, including the Canal Zone. Aircraft a part 
of the armed forces of any foreign nation shall not be navigated 



PROHIBITED CARRIAGE / 

in the United States, including the ("anal Zone, except in accord- 
ance with an authorization granted by the Secretary of State. 
(44 U. S. Stat. 572.) 

Definitions of terms used in the act were given and 
some of these have been embodied in treaties, regula- 
tions, etc. 

Prohibited carriage. — By Executive order of Febru- 
ary 18, 1929, issued in accordance with the act of August 
24, 1912 (37 U. S. Stat. 560) : 

a. The carriage by private aircraft of arms and munitions of 
war, and of such articles as are or may be prohibited by law and 
regulations of the United States in force in the Panama Canal 
Zone or of the State in which the aircraft is registered is pro- 
hibited. 

b. Express license and authority must be procured from author- 
ized Panama Canal Zone officials for the carriage in private air- 
craft of arms for hunting or protection of crew and cargo, 
commercial explosives, photographic apparatus not boxed and 
sealed, and such other articles as the Governor of the Panama 
Canal may prescribe. 

Regulations in general. — It is now generally admitted 
that regulations for the use of aircraft may have some 
analogies to the regulations for the use of naval craft, 
yet aerial navigation is so unlike maritime navigation 
that analogies are often very misleading-. The time ele- 
ment in the use of aircraft as well as the space element 
is, in man} 7 respects, unlike that in the use of naval craft. 
The increased range of vision introduces other problems 
which have led to propositions to extend the aerial zone 
beyond the commonly accepted 3-mile maritime zone of 
jurisdiction. 

There would still remain certain problems as to using 
higher aerial zones along the frontier of adjacent states. 
In any case it is recognized that there are differences in 
the nature of the use of the air over land and over terri- 
torial waters. 

Commission of Jurists, 1923. — The use of higher aerial 
zones at sea was one of the matters under consideration 
by the Commission of Jurists to consider and report 



8 NEUTRALITY AND AIRCRAFT 

upon the lie vision of the Rules of Warfare at The 
Hague in 19*23. The Italian delegate particularly ad- 
vocated a 10-mile national jurisdiction for aerial pur- 
poses while not proposing a change in maritime jurisdic- 
tion. The commission did not regard the proposal as 
practicable, calling attention to the case in which a 
neutral state, which maintained the 3-mile limit of 
maritime jurisdiction, might desire to take action against 
a belligerent hydroplane flying within 10 miles of the 
■coast but over the high seas. The hydroplane might 
alight and at once be outside neutral jurisdiction and on 
the high seas. The report of the commission said : 

On principle it would seem that the jurisdiction in the air- 
space should be appurtenant to the territorial jurisdiction enjoyed 
beneath it, and that in the absence of a territorial jurisdiction 
beneath, there is no sound basis for jurisdiction in the air. 

Furthermore, it is felt that the obligation to enforce respect 
for neutral rights throughout a 10-mile belt would impose an 
increased burden on neutral Powers without adequate compen- 
sating advantages. Even with this wider belt it would still be 
easy for airmen fighting in the air to lose their bearings in the 
heat of the combat, and to encroach inadvertently on neutral 
jurisdiction. Lastly, the greater the distance from the coast, the 
more difficult it is for the position of an aircraft to be determined 
with precision, and the more frequent, therefore, will disputes 
become between belligerent and neutral States as to violation by 
the former's aircraft of the latter's jurisdiction. (1924, Naval 
War College, International Law Documents, p. 152.) 

The Italian delegation while renouncing further im- 
mediate consideration of the proposition states that — 

1. It does not think it desirable to resume in Plenary Com- 
mission the discussion of a question which has on several occa- 
sions been considered in all the necessary detail during the meet- 
ings of the Sub-Committee. 

2. Nevertheless, although the majority of the Delegations have 
already put forward views opposed to its proposal, it continues 
to believe in the importance of that proposal and in the necessity 
for its adoption and insertion in an international convention. 

3. From the point of view both of belligerent and of neutral 
States, their are reasons of the highest juridicial and technical 



RULES OF COMMISSIONS 9 

importance which make it indispensable to allow each State the 
power of including in its jurisdiction the atmospheric space to a 
distance of 10 miles from its coast. 

4. The difficulties resulting from the difference between the 
width of the marginal air-belt and the width of national terri- 
torial waters would not seem to be so serous as to render the 
Italian proposal unacceptable in practice. 

5. In any case, there is no juridical obstacle to the fixing of 
the same width of space for the marginal air-belt as for terri- 
torial waters, the Italian Delegation being of opinion that inter- 
national law, as generally recognised, contains no rule prohibit- 
ing a State from extending its territorial waters to a distance 
of 10 sea-miles from its coasts. 

6. In conclusion, it urges that a question of such paramount 
importance should be reopened and placed upon the agenda of a 
conference in the near future. (Ibid, p. 153.) 

League of Nations Commission. — The League of 
Nations Preparatory Commission for the Disarmament 
Conference considered the question of limitation of air 
armament from time to time. There seemed to be a 
general opinion that civil aircraft would play a very 
important part in any war that might arise. It was 
proposed that aircraft be distinguished by type, antici- 
pating that one type would be characteristically military 
and another civil. It was admitted that such distinctive 
types had not yet evolved. It was also admitted that in 
any attempt at limitation of air forces, it would be dif- 
ficult to determine the potential air personnel and even 
more difficult to determine air material in reserve. Much 
difficulty was experienced in defining clearly the term 
" in reserve." Some regarded material in reserve as 
merely substitute material provided for emergency need 
of aircraft in commission; some would extend the idea 
to cover material that could be mobilized in case of need 
and others admitted that no satisfactory determination 
could be made. There were also many problems in mark- 
ing off civil aviation undertakings from military and 
strategic. 

Draft Convention, 1930. — The Draft Convention pre- 
pared by the Preparatory Commission for the Disarm- 



10 NEUTRALITY AND AIRCRAFT 

anient Conference in referring to air armament in arti- 
cle 28 embodied the provision, " No preparations shall 
be made in civil aircraft in time of peace for the instal- 
lation of warlike armaments for the purpose of con- 
verting such aircraft into military aircraft." (League 
of Nations, C. 4, M. 4, 1931, IX (C. P. D. (1)), p. 607.) 
Other provisions were also embodied to distinguish mili- 
tary and private aircraft. In the preliminary discus- 
sions of the commission, however, many differences of 
opinion were manifest. 

Ap2?lication of rules. — Rules for land and maritime 
warfare have become fairly well established. It has 
been argued that these so far as their principles are 
applicable be extended to the air. Some of these rules 
may doubtless be applicable. The following might be 
in this category even if it afforded no final criteria for 
opinion : 

XIII, Hague Convention, Rights and Duties of Neutral 
Powers in Maritime War 

Art. 1. Belligerents are bound to respect the sovereign rights 
of neutral Powers, and to abstain, in neutral territory or neutral 
waters, from all nets which would constitute, on the part of 
the neutral Powers, which knowingly permitted them, a non- 
fulfilment of their neutrality. 

There has been much discussion as to whether an air- 
craft is a means of transportation and analogous to a 
maritime vessel or an instrument of war and analogous 
to a projectile, i. e. a winged intelligent projectile. In 
any case it is an instrument in which the time and space 
elements in the region above the earth's surface have 
been reduced to the minimum. 

American- German correspondence, 1915. — On Janu- 
ary 19, 1915, the German ambassador raised question 
with the Secretary of State as to the delivery of hydro- 
aeroplanes by a neutral firm to a belligerent state. The 
German position Avas stated as follows : 



AMERICAN-GERMAN POSITIONS, 1915 11 

There is no doubt that hydro-aeroplanes must be regarded as 
war vessels whose delivery to belligerents states by neutrals 
should be stopped under Article 8 of the thirteenth convention 
of the Second Hague Conference of October 18, 1907. Hydro- 
aeroplanes are not mentioned by name in the convention simply 
because there was none in 1907 at the time of the conference. 
(1915, Foreign Relations, Supplement, p. 777.) 

To the letter of the German ambassador, Secretary of 
State Bryan replied on January 29 : 

Excellency : I have the honor to acknowledge the receipt of 
your excellency's note of the 19th instant, and in reply have to 
inform you that the statements contained in your excellency's 
note have received my careful consideration in view of the 
earnest purpose of this Government to perform every duty which 
is imposed upon it as a neutral by treaty stipulation and inter- 
national law. 

The essential statement in your note, which implies an obliga- 
tion on the part of this Government to interfere in the sale 
and delivery of hydro-aeroplanes to belligerent powers, is : 

" There is no doubt that hydro-aeroplanes must be regarded 
as war vessels whose delivery to belligerent states by neutrals 
should be stopped under Article 8 of the thirteenth convention of 
the Second Hague Conference of October 18, 1907." 

As to this assertion of the character of hydro-aeroplanes I sub- 
mit the following comments : The fact that a hydro-aeroplane is 
fitted with apparatus to rise from and alight upon the sea does 
not in my opinion give it the character of a vessel any more than 
the wheels attached to an aeroplane fitting it to rise from and 
alight upon land give the latter the character of a land vehicle. 
Both the hydro-aeroplane and the aeroplane are essentially air- 
craft ; as an aid in military operations they can only be used in 
the air. The fact that one starts its flight from the surface of 
the sea and the other from the land is a mere incident which in 
no way affects their aerial character. 

In view of these facts I must dissent from your excellency's as- 
sertion that " there is no doubt that hydro-aeroplanes must be 
regarded as war vessels," and consequently I do not regard the 
obligations imposed by treaty or by the accepted rules of inter- 
national law applicable to aircraft of any sort. 

In this connection I further call to your excellency's attention 
that according to the latest advices received by this Department 
the German Imperial Government include " balloons and flying 
machines and their component parts " in the list of conditional 

138120—32 2 



12 NEUTRALITY AND AIRCRAFT 

contraband, and that in the Imperial prize ordinance, drafted 
September 30, 1909, and issued in the Reichs-Gesetzblatt on Au- 
gust 3, 1914, appear as conditional contraband " airships and fly- 
ing machines" (Article 23, section 8). It thus appears that the 
Imperial Government have placed and still retain aircraft of all 
descriptions in the class of conditional contraband, for which no 
special treatment involving neutral duty is, so far as I am ad- 
vised, provided by any treaty to which the United States is a 
signatory or adhering power. 

As in the views of this Department the provisions of Conven- 
tion XIII of the Second Hague Convention do not apply to hydro- 
aeroplanes I do not consider it necessary to discuss the question 
.as to whether those provisions are in force during the present 
war. (Ibid, p. 780.) 

Neutrality proclamation, 19 H. — Under accepted prin- 
ciples of international law a neutral state may not di- 
rectly or indirectly supply a belligerent with materials 
-of war or allow its ports to be used as bases by bellig- 
erents. 

Question has been raised as to whether supplies or 
war material purchased before the war and still within 
neutral jurisdiction may be withdrawn by the bellig- 
erent during the war. 

The proclamation of neutrality of the United States 
in 1914 stated that — 

Whereas the laws and treaties of the United States, without 
interfering with the free expression of opinion and sympathy, 
or with the commercial manufacture or sale of arms or muni- 
tions of war, nevertheless impose upon all persons who may be 
within their territory and jurisdiction the duty of an impartial 
neutrality during the existence of the contest; 

And whereas it is the duty of a neutral government not to 
permit or suffer the making of its waters subservient to the 
purposes of war ; * * * 

The following acts are forbidden to be done, under severe pen- 
alties, within the territory and jurisdiction of the United States, 
to wit: 

8. Fitting out and arming, or attempting to fit out and arm, 
or procuring to be fitted out and armed, or knowingly being con- 
cerned in the furnishing, fitting out. or arming of any ship or 
vessel with intent that such ship or vessel shall be employed in 
-the service of either of the said belligerents. * * * 



SUPPLIES FOR AIRCRAFT 13 

10. Increasing or augmenting, or procuring to be increased or 
augmented, or knowingly being concerned in increasing or aug- 
menting, the force of any ship of war, cruiser, or other armed 
vessel, which at the time of her arrival within the United States 
was a ship of war, cruiser, or armed vessel in the service of 
either of the said belligerents, or belonging to the subjects of 
either, by adding to the number of guns of such vessels, or by 
changing those on board of her for guns of a larger caliber. 

This proclamation also provided that — 

no ship of war or privateer of any belligerent shall be permitted 
to make use of any port, harbor, roadstead, or other waters within 
the jurisdiction of the United States as a station or place of resort 
for any warlike purpose or for the purpose of obtaining any facil- 
ities of warlike equipment; (1915, Naval War College. Interna- 
tional Law Topics, p. 7.) 

These principles Avould extend equally to aircraft or 
other new means of warfare. 

Supplies. — It is evident that law relating to certain 
aspects of the rights and duties of states in the super- 
jacent air in the time of war is not yet clearly estab- 
lished. In many phases there are possible analogies to 
the principles of the law of maritime and land warfare. 
The fact that time and space are greatty reduced as 
factors in movement of aerial warcraft as compared 
with naval warcraft becomes a matter of great signifi- 
cance. Some states have accordingly prohibited to mili- 
tary aircraft any entrance to their jurisdiction. It is 
now a generally accepted principle that the belligerent 
should not use and that the neutral should not permit 
the use of its territory as a base. The fuel of an air- 
craft is at present a most important element in its use. 
To afford safe port for the exchange of a less service- 
able fuel for a more serviceable fuel would not be merely 
to render the aircraft airworthy, but would be permit- 
ting the use of the airport as a base and should accord- 
ingly be forbidden by the neutral. In maritime war 
article 8 of the 1907 Hague Convention concerning the 



14 NEUTRALITY AND AIRCRAFT 

rights and duties of neutral powers in naval war applies 
and is as follows : 

A neutral Government is bound to employ the means at its 
disposal to prevent the fitting out or arming of any vessel within 
its jurisdiction which it has reason to believe is intended to 
cruise, or engage in hostile operations, against a Power with 
which that Government is at peace. It is also bound to display 
the same vigilance to prevent the departure from its jurisdiction 
of any vessel intended to cruise, or engage in hostile operations, 
which had been adapted entirely or partly within the said juris- 
diction for use in war. (1908, Naval War College, International 
Law Situations, p. 215.) 

The principles of this convention would apply to air- 
craft within neutral jurisdictio n, jj 

British-Dutch correspondence, 1916. — In April, 1916, 
a British seaplane which fell well out in the North Sea 
was, with its pilot, picked up by a Dutch lugger and 
taken to a Dutch port. This event gave rise to consid- 
erable correspondence between the Governments of the 
parties concerned. Some of the correspondence stated 
the official contentions. 

A memorandum of the British Foreign Office of 
May 31, 1916, stated the Government's position quite 
fully, and is therefore given somewhat at length : 

A seaplane belonging to His Majesty's forces was recently 
obliged on account of engine trouble to descend while over the 
North Sea. The pilot was rescued by a Dutch fishing boat, 
which took both him and the seaplane into a Dutch port. The 
Netherlands Government, though they have released the pilot, 
appear to consider it their duty to retain the seaplane for the 
duration of the war. After a careful consideration of the 
question, His Majesty's Government feel bound to dissent from 
this view, and believe that the Netherlands Government are under 
no obligation to intern the machine. 

The Netherlands Government, in releasing the pilot, appear to 
have considered that he was in the same position as a member 
of a crew of a shipwrecked beligerent warship who is picked 
up by a neutral merchant vessel and conveyed to a neutral port ; 
such a person, under the rules of The Hague Convention No. 10, 
of 1907, is entitled to bo released. His Majesty's Government 
believe their decision on this point to be correct and consider 



BRITISH-DUTCH POSITIONS, 1916 15 

that, while none of the rules expressly laid down by international 
law exactly fit the case of the seaplane, a further examination 
of the principles which lie behind the rules which compel neutrals 
to intern belligerent forces in certain circumstances shows that 
the seaplane should also be released. 

The rules concerning internment are not based on any single 
and uniform principle. This fact explains itself when one 
takes into consideration that these rules have grown up grad- 
ually and severally and were, before the Peace Conference at 
The Hague in 1907, customarily agreed upon from different 
motives. The consequence is that the rules governing intern- 
ment differ not only with regard to the internment of soldiers 
on neutral land and internment of warships in neutral har- 
bours, but also with regard to the internment of troops in gen- 
eral, and the internment of such soldiers as have escaped from 
captivity. 

One of the basic reasons for the rules concerning internment 
is no doubt the fact that a belligerent is entitled to insist that 
such enemy forces as have crossed neutral territory for the pur- 
pose of escaping capture, shall not be enabled to leave the neutral 
territory, and again resort to hostilities. But this concerns only 
enemy forces which have deliberately entered neutral territory 
for the purpose of escaping capture: it cannot apply to such 
enemy forces as for other purposes cross into neutral terri- 
tory, or even cross accidentally without knowledge of the neutral 
frontier. Now, all these must likewise be interned, and the 
basic reason for their internment is that, in case these troops 
are not interned, the other belligerent would be justified in 
crossing into the neutral territory on his part and attacking 
the enemy there. 

As regards the internment of men-of-war, the basic reasons 
are also manifold. One is — just as in the case of fugitive 
troops — that a belligerent is entitled to insist that enemy men- 
of-war which deliberately enter neutral harbours for the pur- 
pose of escaping capture, shall not after some length of time 
be allowed to leave and resort to hostilities again, although they 
may leave if they only stay twenty-four hours. Other reasons 
are that a neutral must not allow belligerent men-of-war to make 
his harbours the base of military operations, the base of supply 
beyond a certain limit, the base for repairing vital damages, 
and the like. 

Considering that a neutral need not intern soldiers who escape 
from captivity, that he need not intern such shipwrecked men as 
have been rescued by neutral merchantmen and brought to neutral 
ports ; that he need not intern such men-of-war as call at neutral 



16 NEUTRALITY AND AIRCRAFT 

harbours for legitimate purposes ; and the like — there is without 
doubt no general rule in existence which compels a neutral to in- 
tern in every case every member of belligerent forces who gets 
on to its territory, and every man-of-war which comes into its 
harbours. Each case must be decided according to its merits, and 
there are different rules for the different cases. 

It seems evident that the case of the seaplane which the Nether- 
lands Government is detaining is similar to the case of ship- 
wrecked members of belligerent forces rescued by neutral mer- 
chantmen. Whereas, if such shipwrecked men are rescued by a 
neutral warship, they must be interned according to article 13 of 
Convention No. 10 of The Hague, 1907, they need not be interned 
if rescued by neutral merchantmen and brought to neutral har- 
bours. 

What are the basic reasons for this difference? That ship- 
wrecked men rescued by neutral men-of-war must be interned is 
obvious, because these men have been saved from drowning, and 
perhaps from capture, by getting on neutral territory — a neutral 
man-of-war is neutral territory — and they can as little be allowed 
to go back to their own country as members of belligerent forces 
in land warfare who escaped being captured or killed by crossing 
into neutral territory. On the other hand, if they are rescued by 
neutral merchantmen they do not thereby come into neutral ter- 
ritory, for neutral merchantmen are not, as neutral men-of-war 
are, neutral territory, and any enemy warship may demand that 
the rescued men be handed over to her. Further, the rescuing 
neutral merchantmen may as well take the rescued men into a port 
of their own country as to a neutral port ; it is a mere accident 
if the rescued men are taken into a neutral port instead of into a 
port of their own country, and for this reason they need not be 
interned if they are brought into a neutral port. 

It may be argued that, in case she does not intern the rescued 
seaplane, Holland would violate her neutrality and render as- 
sistance to Great Britain by allowing the latter to recover a sea- 
plane which were otherwise lost. However, the assistance, if 
any, rendered by the release of the seaplane would not be greater 
than the assistance, if any, to a belligerent comprised in the per- 
mission, which according to existing law may be given to escaped 
prisoners of war, and to prisoners brought by troops taking refuge 
on neutral territory, to leave such territory with the consequence 
that they will eventually rejoin the armed forces of their country. 
And why should the release of the British seaplane be an unneu- 
tral act, whereas the release of her airman, which has actually 
taken place, is not? If this airman was allowed to return with 



BRITISH-DUTCH POSITIONS, 1916 17* 

the consequence of eventually joining the British forces again, 
why should not the same be allowed to his seaplane? 

Lastly, it ought to be taken into consideration that none of the 
enumerated basic reasons for the duty of neutrals to intern bel- 
ligerent forces can be made use of in favour of internment of 
the rescued seaplane. The seaplane did not go to Holland for 
the purpose of escaping capture, or for the purpose of taking in 
supplies, or for the purpose of undergoing repairs. In fact, it 
did not get there voluntarily and on its own account, but quite 
accidentally, because the rescuing merchantman might as well 
have taken it to an English as to a Dutch port. 

It must also be remembered that if the seaplane had been 
left at sea it might have been salved by His Majesty's Govern- 
ment, or by a British ship and taken to a British port. The 
pilot could speak no Dutch, and the skipper of the fishing boat 
which rescued him could not speak English, so that the pilot was 
unable to give any directions or express any wish with regard 
to the disposal of the seaplane. (Parliamentary Papers, Misc. 
No. 4 (1918) [Cd. 8983], p. 3.) 

Referring to this matter in a communication of July 
11, 1916, the Netherlands Minister of Foreign Affairs 
said: 

Your Excellency points out to me that the case of war mate- 
rial salved on the high seas is analogous to that of the ship- 
wrecked belligerent combatant. I feel I must, however, point 
out to your Excellency that the analogy between these two cases 
is only apparent. International law has defined the treatment of 
combatants rescued on the high seas by a neutral vessel and 
disembarked in a neutral port. It has sought to safeguard personal 
liberty as far as possible, and has established that, only in the 
case of rescue by a neutral warship (which is considered to form 
part of the territory of the country) should the shipwrecked 
person necessarily be interned. This consideration did not arise 
in the case of material salved on the high seas. In the absence 
of any ruling in this connection, the neutral Governments are 
then called upon to retain, until the end of the war, material 
salved by a vessel of their nationality, whether warship or 
merchant-vessel. 

It is true that, by leaving at liberty the belligerent combatant 
brought in by a merchant vessel, the neutral Government enables 
him to take up arms again, but, just as in the case, quoted by 
your Excellency, of escaped prisoners of war, regard for personal 
liberty does not permit of his being interned, unless the rules 
of international law expressly impose this restriction. 



18 NEUTRALITY AND AIRCRAFT 

In view of the considerations set forth above, I believe tbat 
your Excellency's Government will surely recognise tbat the 
Queen's Government, while regretting their inability to accede 
to the wishes of the British Government, would be acting in 
contradiction to the principles which have till now guided them 
in the observation of neutrality were they to restore Sub-Lieuten- 
ant Beare's seaplane before the end of the war. (Ibid., p. 6.) 

British-Dutch correspondence, 1917. — Later in Sep- 
tember, 1917, another British seaplane which came down 
in open sea was towed with two occupants to a Dutch 
port. The occupants were released but the seaplane was 
detained. A note was sent by the British Minister at 
The Hague to the Dutch Foreign Office in which it was 
said: 

A fresh case has now arisen in the case of a British seaplane, 
No. 1,232, manned by Flight-Lieutenant Hopcroft and Petty 
Officer Garner, which came down on the high seas on the 23rd 
September some 60 miles from the Dutch coast, was rescued by 
a Dutch fishing vessel, and towed into the Helder, where the 
machine is now detained, although the occupants have been 
released in accordance with the accepted tenets of international 
law. 

I would beg to remind your Excellency that it was stated in Sir 
A. Johnstone's note of the 10th September, 1916, that His 
Majesty's Government maintains that the rule by which ship- 
wrecked combatants brought into a neutral port by neutral mer- 
chant vessels are released applies equally to the case of war 
material belonging to a belligerent which is brought into a neutral 
port by a neutral merchant ship. This contention is still main- 
tained by His Majesty's Government, and I have therefore to 
request that the Netherlands Government will order the release 
of the airship in (fuestion, as well as of that which came down Last 
year with Lieutenant Beare on board. 

In the course of a recent conversation, I understood your 
Excellency to be somewhat doubtful as to whether the decision 
of the Netherlands Government in the case of such aircraft 
brought in by a neutral vessel was undeniably good in law, but 
I gathered that you are of opinion that such a decision once 
taken cannot be reversed. I would venture with great respect 
to point out to your Excellency that such an attitude is equiva- 
lent to contending that two wrongs can make a right — a conten- 
tion which I feel sure your Excellency will realise, on reflection, 
cannot be justifiably maintained as a reason for continuing to 



BRITISH-DUTCH POSITIONS, 1917 19 

i utern aircraft that would appear to be as clearly entitled to 
release as the officers who manned them. 

Your Excellency, in the course of the conversation to which 
allusion is made above, stated that you had reason to think that 
the rule applied in the case of these British airships had also 
been enforced in connection with other belligerent machines. It 
would be of great interest to my Government to possess details 
of such instances, and I should therefore be greatly obliged if 
your Excellency would be so good as to furnish me with the same. 
(Ibid., p. 12.) 

In again declining to accept the British view, the 
Dutch Minister of Foreign Affairs gave a long argu- 
ment in the course of which he said : 

It goes without saying that if an analogous case concerning 
one of the adversaries of Great Britain were to arise, for exam- 
ple, if a German dirigible were brought into Holland in similar 
circumstances, the Queen's Government would in the same way 
not think of restoring it before the end of the war. I venture 
to make this apparently superfluous remark in order to show 
that, if the Queen's Government were to accept the British 
Government's point of view, they would be obliged in such cir- 
cumstances to restore those engines of war to the Government 
to which they belong immediately on their arrival on Netherlands 
territory. As to ships of war, in view of the special stipula- 
tions of international law with regard to them, they can only 
be subjected to this same treatment in the case of their being 
found at sea deserted by their crews ; if, on the contrary, the 
crew is still on board, while the ship has sustained damage 
and is trying to make a neutral port to effect repairs, the Queen's 
Government will have to decide whether the principle expressed 
in article 17 of the 13th Convention requires the release of the 
ship and her crew. (Ibid., p. 16.) 

The British Government again renewed its contention 
in a note of December 21, 1917. 

9. The Netherlands Government base their refusal to restore 
to His Majesty's Government the articles detained on the gen 
eral ground that there is no precise rule covering the question 
of their proper treatment, and that their restoration would 
be an act reinforcing the armed strength of a belligerent, and 
therefore contrary to neutrality. The argument is supported, 
in the eyes of the Netherlands Government, by article 6 of the 
13th Hague Convention, which forbids the direct or indirect 



20 NEUTRALITY AND AIRCRAFT 

supply of war material by a neutral Government to a belligerent. 
It is contended that the liberation of the crews of the seaplanes 
referred to above was prescribed by a definite rule of interna- 
tional law overriding the general prohibition against strengthen- 
ing a belligerent's military strength ; this rule cannot, accord- 
ing to the Netherlands Government, be applied by analogy to 
the articles rescued at the same time or in similar circum- 
stances, because the general prohibition which they conceive to 
necessitate the action which they have taken must hold good 
unless explicitly overridden. 

10. In all the cases enumerated above, with the exception of 
the seaplane rescued by the Norwegian steamship Orn, Dutch 
subjects have — so far as is known, unasked — taken possession of 
the property of His Majesty's Government on the high seas and 
carried it into Netherlands jurisdiction. On requesting the resto- 
ration of the property thus gratuitously taken from them, His 
Majesty's Government are met with the excuse that to release 
the articles would be to add to the armed strength of Great Brit- 
ain, and would therefore be contrary to the neutrality of the 
Netherlands. The practical effect of such a ruling is that Dutch 
seamen who, from motives of humanity, rescue wrecked British 
airmen and their machines, become — no doubt entirely contrary 
to their wishes or their expectations — instrumental in diminishing 
the armed strength of Great Britain. In the worst case noted 
(that in which a machine-gun and other gear was removed from a 
seaplane by the crew of the Noord-Hinder lightship, who were 
Netherlands Government servants), it is difficult to perceive much 
difference between such conduct and the misappropriation of goods 
which becomes the subject of criminal proceedings. Yet the resto- 
ration of the articles thus taken is refused on the ground of neu- 
trality. 

11. The Netherlands Government contend that, if it were not for 
the existence of an express provision of international law over- 
riding the general rule, they would be obliged by the prohibition 
against adding to the armed strength of a belligerent to intern 
the crews of belligerent warships or aircraft rescued and brought 
to the Netherlands by neutral merchant ships. It must be re- 
marked that, if this general prohibition really had the effect pre- 
tended, it could scarcely be overridden without a definite regula- 
tion laying down in terms that such crews were not to be in- 
terned. No such positive regulation exists. The rule under which 
persons in the above position are released is merely mentioned, as 
it were in passing, in the report of the Drafting Committee on 
The Hague Convention for the adaptation of the principles of the 
Geneva Convention to Maritime Warfare. It is evident that it is 



TRANSFORMATION OF AIRCRAFT 21 

not a rule overriding a wider principle, but is one recognised as 
flowing naturally from the general principles which govern the 
question of the internment of belligerent persons and war material 
by neutral Powers. Those general principles apply equally to 
persons and to material by analogous circumstances, and this fact 
is not altered by the chance that the case of combatants rescued 
by neutral merchant ships is mentioned in the report on the 10th 
Hague Convention, while no allusion to the case of material in 
a similar position occurs in an equally authoritative document. 

12. As regards the reference made by the Netherlands Govern- 
ment to the terms of article 6 of the 13th Hague Convention, His 
Majesty's Government can only express astonishment at being 
asked to consider such an argument. The article refers to the 
supply by a neutral to a belligerent Power of war material owned 
by the neutral, and has no wider scope. Furthermore, it must be 
observed that the seaplanes and other articles now in question 
would never have come into the possession of the Netherlands 
Government at all if they had been left alone by the Dutch sub- 
jects who brought them into the Netherlands ports. There could 
have been no question of the Government furnishing any of the 
articles to His Majesty's Government had they simply refrained 
from impounding goods which no rule of international law re- 
quired them to seize. 

13. I request that you will address a note in the above sense 
to the Netherlands Minister for Foreign Affairs, stating that 
His Majesty's Government is unable to perceive any force in the 
arguments by which he seeks to defend the action of his Govern- 
ment, and at the same time reiterate the request for the release 
and return of the articles in question. (Ibid., p. 17.) 

Some of this correspondence shows the effect of the 
strain of war in an attempt .to obtain from a neutral all 
possible concessions in the way of favorable treatment on 
the one hand and of an attempt to avoid all possible com- 
plications to which a neutral might be exposed on the 
other. Possibly the hope of salvage money may also 
stimulate a private neutral vessel to bring in a disabled 
aircraft found on the sea. 

Transformation of civil aircraft. — In 1919 the Su- 
preme Council of the Peace Conference proposed to the 
Aeronautical Commission among others the following 
question : " Can civil aeroplanes and airships be easily 
transformed into weapons of war? " The aeronautical 



22 NEUTRALITY AND AIRCRAFT 

commission made up of technical representatives from 
the United States, the British Empire, France, Italy, 
Japan, Belgium, Brazil, Cuba, Greece, Portugal, Eu- 
mania and Serb-Croat-Slovene States, after considera- 
tion, replied unanimously. ' k Yes, commercial aeroplanes 
and airships can be very easily and quickly transformed 
into weapons of war." 

General principles, 1919. — The degrees to which the 
principles of regulation of aviation had advanced is evi- 
dent in the discussions preliminary to the negotiation of 
the treaty of peace and the convention relating to inter- 
national air navigation in 1919. On April 7, 1919, the 
following was approved by the Aeronautical Commis- 
sion : 

List of Peinciples Settled by the Commission for the Purpose 
of Guiding the Subcommittees in Their Work 

1. Recognition — 

(1) Of the principle of the full and absolute sovereignty of 
each State over the air above its territories and territorial waters, 
carrying with it the right of exclusion of foreign aircraft : 

(2) Of the right of each State to impose its jurisdiction over 
the air above its territory and territorial waters. 

2. Subject to the principle of sovereignty, recognition of the de- 
sirability of the greatest freedom of international air navigation 
in so far as this freedom is consistent with the security of the 
State, with the enforcement of reasonable regulations relative to 
the admission of aircraft of the contracting States and with the 
domestic legislation of the State. 

3. With regard to domestic regulations relative to the admis- 
sion and treatment of the aircraft of the contracting States, 
recognition of the principle of the absence of all discrimination 
on the ground of nationality. 

4. The recognition of the principle that every aircraft must 
possess the nationality of one contracting State only and that 
every aircraft must be entered upon the register of the contract- 
ing State the nationality of which it possesses. 

5. The following provisions are recognized as desirable from 
an international point of view to insure the safe conduct of 
aerial navigation: 

(i) Regulations for compulsory certificates of airworthiness 
and licenses for wireless equipment, at least for aircraft used 



GENERAL PRINCIPLES, 1919 23 

for commercial purposes. Mutual recognition of these certifi- 
cates and licenses by the contracting States. 

(ii) Regulations for compulsory licenses of pilots and other 
personnel in charge of aircraft. Mutual recognition of these 
licenses by the contracting States. 

(iii) International rules of the air, including international 
rules as to signals, lights, and for the prevention of collisions. 
Regulations for landing and on the ground. 

6. Recognition of the principle of special treatment for military, 
naval, and State aircraft when they are in Government Service. 

7. Recognition of the right of transit without landing for 
international traffic between two points outside the territory of 
a contracting State, subject to the right of the State traversed 
to reserve to itself its own internal commercial aerial traffic 
and to compel landing of any aircraft flying over it by means 
of appropriate signals. 

8. Recognition of the right of use. by the aircraft of all the 
contracting States, of all public aerodromes upon the principle 
that charges for landing facilities should be imposed without 
discrimination on the ground of nationality. 

9. Recognition of the principle of mutual indemnity between 
the contracting States to cover damage done to person or prop- 
erty in one State by Government aircraft of another State. 

10. Recognition of the necessity of a permanent International 
Aeronautical Commission. 

11. Recognition of the obligation of each contracting State 
to give effect to the provisions of the convention by its domes- 
tic legislation. 

12. Recognition of the principle that the convention does not 
affect the rights and duties of belligerents or neutrals in time 
of war. (Commission de l'Aeronautique, p. 18.) 

Questions in House of Commons. — Some of the rescues 
of the crews of submarines gave rise to questions in re- 
gard to their treatment by neutrals. In the House of 
Commons, January 13, 1916 : 

Mr. Swift MacNeill asked the Secretary of State for Foreign 
Affairs whether the crew of the British submarine which sank 
off Texel on the 6th instant, having sprung a leak and grounded, 
who were rescued by a Dutch cruiser and brought into Helder, 
have been interned at Groningen by the Dutch Government; 
whether, having regard to the fact that the British submarine 
whose crew were thus rescued was not sunk by a belligerent, the 
detention or internment of that crew by the Dutch Government 



24 NEUTRALITY AND AIRCRAFT 

is contrary to the principles and practice of international law ; 
whether Article 13 of Convention X, of the Second Peace Con- 
ference, providing that if shipwrecked sailors are taken on 
board a neutral man-of-war precaution must be taken so far as 
possible that they do not again take part in the operations of 
the war, applies only to sailors whose ships have been wrecked 
by the enemy, not to sailors whose ships have been wrecked 
in the ordinary course of navigation ; and whether Great Britain 
will demand the immediate release from detention of these 
sailors, whose case does not differ from that of any other British 
subjects in neutral territory, and who should, even if their ship 
had been disabled by a belligerent, as in the case of the Russian 
sailors rescued by British, French, and Italian cruisers from 
ships disabled by the Japanese, be not detained but handed over 
to Great Britain on the condition that they should not take part 
in hostilities during the War? 

Sir E. Grey. The crew of the E 17 has been interned by the 
Dutch Government, but the place of internment is as yet un- 
known to His Majesty's Government. 

The answer to the second part of the question is that Article 
13 of Convention X of The Hague draws no distinction between 
ships wrecked by the enemy or in the ordinary course of navi- 
gation. As to the remainder of the hon. Member's question, I 
will see that the suggestions and arguments put forward by him 
are very carefully considered. (Parliamentary Debates, Com- 
mons, 1915-1916, Vol. LXXVII, p. 1743.) 

Repairing in neutral port. — Authorities are bound in 
general by the obligation to use due diligence that the 
port shall not become a base, and by previous principles 
and practice of Great Britain. This obligation to use 
due diligence is embodied in the provisions of the treaty 
of Washington, 1871, which states, in Article VI : 

A neutral Government is bound — 

First, to use due diligence to prevent the fitting out, arming, 
or equipping, within its jurisdiction, of any vessel which it has 
reasonable ground to believe is intended to cruise or to carry on 
war against a Power with which it is at peace; and also to use 
like diligence to prevent the departure from its jurisdiction of 
any vessel intended to cruise or carry on war as above, such 
vessel having been specially adapted, in whole or in part, within 
such jurisdiction, to warlike use. 



KEPAIEING IN NEUTRAL POET 25 

Secondly, not to permit or suffer either belligerent to make 
use of its ports or waters as the base of naval operations against 
the other, or for the purpose of the renewal or augmentation of 
military supplies or arms, or the recruitment of men. 

Thirdly, to exercise due diligence in its own ports and waters, 
and, as to all persons within its jurisdiction, to prevent any 
violation of the foregoing obligations and duties. 

After 1871 these principles were generally approved. 
In 1907 at The Hague Conference, Great Britain pro- 
posed as a basis for a rule : 

A neutral State must not knowingly permit a warship of a 
belligerent to repair within its jurisdiction the injuries resulting 
from a combat with the enemy, nor in any case to make repairs 
in excess of what will be necessary for navigating. 

Japan made a similar proposal. 

After much discussion a provision in regard to re- 
pairs was embodied as article 17 of the Thirteenth Con- 
vention on Neutral Eights and Duties in Maritime War, 
as follows: 

In neutral ports and roadsteads belligerent warships may only 
carry out such repairs as are absolutely necessary to render them 
seaworthy, and may not add in any manner whatsoever to their 
fighting force. The local authorities of the neutral Power shall 
decide what repairs are necessary, and these must be carried out 
with the least possible delay. 

The British, while objecting to some articles of this 
convention, regarded this article 17 as a fair statement 
of the existing law. 

The "Glasgow,'' 191Jf.. — In the Battle of Coronel be- 
tween the British and German fleets off the west coast 
of Chile on November 1, 1914, two British vessels were 
sunk and others were damaged. The cruiser Glasgow 
was reported to have received five holes from German 
shell fire. The Glasgow steamed under orders away 
from the area of battle, passed through the Straits of 
Magellan, and on November 20, was reported as repair- 
ing at Rio de Janeiro. 



26 NEUTRALITY AND AIRCRAFT 

The " Glasgow " at Rio 

reported share in action off chile 
(From our correspondent) 

New York. Nov. 20. 

The Brazilian Government lias given permission for the British 
cruiser Glasgow to enter the dry clock at Rio cle Janeiro to make 
urgent repairs. The Glasgow, according to dispatches published 
in the American Press, has five holes in her hull from shell fire. 
Four of her crew were wounded in the battle off Chile. 

Officers of the Glasgow are quoted as saying that at the outset 
of the battle Admiral Cradock from the flagship Good Hope, 
ordered the Glasgow and Otranto, in view of the higher power 
of the German squadron's guns, to seek a place of refuge. Not- 
withstanding this order the Glasgow answered the German fire. 
In the first few minutes of the fight, the officers of the Glasgow 
are stated to have said the Good Hope had one of her two 9-2 in. 
guns dismantled and her magazine exploded. Admiral Cradock 
and the crews of the Good Hope and Monmouth, it is believed, 
went down with their ships. The battleship Canopus, according 
to the story attributed to the officers of the Glasgow, steaming 
only 16 knots, could not arrive in time to participate in the 
fight. • 

The Brazilian Government has given the Glasgow seven days 
in which to make the necessary repairs. (London Times, 
Nov. 21, 1914.) 

Later, the Glasgoiv took part in the battle off the 
Falkland Islands, December 8, 1914. 

The " Geier " and the c; Locksun." — On October 28, 
1914, the British ambassador raised the question of de- 
taining the Geier, a vessel or war of Germany, and the 
Locksun, a vessel belonging to the North German Lloyd 
Co., which had entered the port of Honolulu. On the 
same date, the Japanese ambassador raised the question 
in regard to the intentions of the United States in regard 
to the Geier. 

On the same day, the Secretary of State received from 
the Treasury Department a report from the Collector of 
-Customs at Honolulu, as follows : 



" GEIER " AND "lOCKSUn" 27 

Honolulu, Oct. 27, 19 U— 10.15 p. m. 
On October 15 captain German gunboat Geier requested permis- 
sion to make repairs to render vessel seaworthy and estimated 
time for same at one week. On October 20 Naval Constructor 
Furer, at my request, examined the vessel and recommended that 
time be extended eight days from 20th to place boilers in seaworthy 
condition. To-day consul requests from eight to ten days more in 
which to make repairs to steam and feed piping and boilers that 
have been found to be leaking. Consul states captain has used 
every effort to finish repairs, working Sundays and overtime, but 
owing to lack of labor can not finish in less time. Naval Con- 
structor Furer has just completed another examination of the 
vessel and reports that he is unable to state how long repairs 
should take, as more leaky tubes may be found as work progresses. 
Honolulu iron works estimates time for repairs at from two to 
three weeks, which, in opinion of Furer, is a conservative mini- 
mum. Furer reports piping and boilers in bad condition; may 
possibly take further time to repair. Await instructions. 
(American Journal International Law, 1915, Spec. Sup. 9, p. 242.) 

On October 30, 1914, the Counselor of the Depart- 
ment of State sent the following to the German am- 
bassador in regard to the Geier: 

Depaetment of State, 
Washington, October 30, 1914- 
My Dear Mr. Ambassador: The Department has been advised 
that the German gunboat Geier put into the port of Honolulu, 
and on October 15 the captain requested permission to make re- 
pairs to render the vessel seaworthy, and estimated the time for 
this work to be one week. The naval constructor of the United 
States at the port of Honolulu examined the vessel on October 
20, and recommended that the time be extended eight days, 
from October 20, in order to place the boilers in a seaworthy 
condition. On October 27, the German consul at that port re- 
quested from eight to ten days additional time in which to make 
repairs to steam and feed piping and boilers that have been 
found to be in a leaking condition. Upon a further examina- 
tion, the United States naval constructor reports that he is un- 
able to state how long repairs should take, as conditions re- 
quiring remedy may be found as work progresses. It is also 
reported that, on account of the generally bad condition of the 
piping and boilers, further time may be required to complete all 
repairs. 

138120—32 3 



28 NEUTRALITY AND AIRCRAFT 

The circumstances in this case point to the gunboat Geier as 
a ship that at the outbreak of war finds iself in a more or less 
broken-down condition and on the point of undergoing general 
repairs, but still able to keep the sea. In this situation the 
Government believes that it does not comport with a strict 
neutrality or a fair interpretation of the Hague Conventions, to 
allow such a vessel to complete unlimited repairs in a United 
States port. The Government therefore has instructed the au- 
thorities to notify the captain of the Geier that three weeks from 
October 15 will be allowed the Geier for repairs, and that if she 
is not able to leave American waters by November 6, the United 
States will feel obliged to insist that she be interned until the 
expiration of the war. (American Journal International Law, 
1915, Spec. Sup. 9, p. 243.) 

Later, a communication was sent in regard to the 
Locksun: 

Department of State, 
Washington, November 7, 1914- 

My Dear Mr. Ambassador: Referring to my previous communi- 
cation to you of October 30 regarding the internment of the Ger- 
man cruiser Geier, the Department is now in possession of infor- 
mation that the German steamship Locksun, belonging to the 
Norddeutscher Lloyd Company, cleared August 16, 1914, from 
Manila with 3,215 tons of coal for Menado, in the Celebes; that 
she coaled the German warship Geier in the course of her voyage 
toward Honolulu, where she arrived soon after the Geier; that 
the Locksun received coal by transfer from another vessel some- 
where between Manila and Honolulu, and that the captain stated 
that he had on board 245 or 250 tons of coal when he entered 
Honolulu, whereas investigation showed that he had on board 
approximately 1,600 tons. 

From these facts the Department is of the opinion that the 
operations of the Locksun constitute her a tender to the Geier, 
and that she may be reasonably so considered at the present time. 
This Government is, therefore, under the necessity of according 
the Locksun the same treatment as the Geier, and has taken steps 
to have the vessel interned at Honolulu if she does not leave im- 
mediately. (American Journal of International Law, 1915, Spec. 
Sup. 9, p. 245.) 

To this action the German ambassador took exception, 
and later the Secretary of State replied : 

In the circumstances of this case, as known by the Department, 
it is obliged to state that it still adheres to its previous position 
that the status of the Locksun as a tender to the ship of war 



INTERNMENT 29 

Oeier was sufficiently proved to justify her treatment as such. 
In this connection the Department has the honor to call to your 
attention the following quotation from the award of the Ala- 
bama Claims Commission, which seems to establish this prin- 
ciple regarding the treatment of tenders, although the applica- 
tion of this statement was not made to the exact circumstances 
of the Locksun case : 

"And so far as relates to the vessels called the Tuscaloosa 
(tender to the Alabama), the Clarence, the Tacony, and the 
Archer (tenders to the Florida), the tribunal is unanimously of 
opinion that such tenders or auxiliary vessels, being properly 
regarded as accessories, must necessarily follow the lot of their 
principals and be submitted to the same decision which applies 
to them respectively." 

The entire practice of the internment of vessels appears to 
be of recent origin. The doctrine of internment was apparently 
first applied to any great extent during the Russo-Japanese war, 
and it is believed that the treatment of the Locksun is in keep- 
ing with the high standard of neutrality upon which the doctrine 
of internment is based. The Department is not aware that meas- 
ures to preserve neutrality are entirely dictated by precedent and 
international law, and it believes that belligerents hardly have 
proper cause to question an attitude on neutrality justly in 
advance of precedent and international law if it is applied by 
the neutral impartially to all belligerents. As to the advisibility 
of assuming such an attitude, the Department is impressed with 
the proposition that the neutral and not the belligerent is the 
proper judge in the circumstances. (American Journal Interna- 
tional Law, 1915, Spec. Sup. 9, p. 251.) 

Spaightfs opinion. — J. M. Spaight, who has written 
much upon various phases of air law, says particularly 
of the situation at the end of the World War regarding 
belligerent aircraft salvaged by neutral private vessels: 

The law upon the point — indeed, upon the whole question of 
belligerent air entry — was unsettled, but a rule was being created 
by practice, and to allow exceptions from it was unwise. Save 
when allocated to, and in contact with, a warship, which, itself 
for some purposes the " territory " of its State, may be regarded 
as imparting its own character to an aircraft carried upon it 
or lashed to it, belligerent military aircraft brought into neutral 
jurisdiction under whatever circumstances should, it is sub- 
mitted, be subject to the one universal and inelastic rule that 
they must be detained by the neutral authorities. Relax that 



30 NEUTRALITY AND AIRCRAFT 

rule and the door opens to a host of possible exceptions and 
complications. (Spaight, Air Power and War Rights, p. 438.) 

i Internment. — In general, aircraft and their personnel 
entering neutral jurisdiction during the World War 
were interned. This was the case whether the aircraft 
entered in distress or flew within neutral jurisdiction. 
Sometimes aircraft flying within neutral jurisdiction 
were brought down by gunfire as was the case in Switzer- 
land and the Netherlands. It made no difference even 
if an aircraft entered neutral jurisdiction in error sup- 
posing it was still in belligerent territory. Sometimes 
notification was given by signal, rocket, or in some other 
manner, but absence of notification was not a ground for 
exemption from liability. 

There is no reason why belligerent aircraft should, 
within neutral jurisdiction, receive any more favorable 
treatment than that extended to naval craft, and as the 
risks following entrance are greater, the accepted doc- 
trine is that belligerent military aircraft may not enter 
neutral jurisdiction and the rules proposed by the com- 
mission of jurists at The Hague in 1923 imposed duties 
upon the neutral. 

Article 42. A neutral Government must use the means at its 
disposal to prevent the entry within its jurisdiction of belligerent 
military aircraft and to compel them to alight if they have 
entered such jurisdiction. 

A neutral Government shall use the means at its disposal to 
intern any belligerent military aircraft which is within its juris- 
diction after having alighted, for any reason whatsoever, together 
with its crew and the passengers, if any, (1924, Naval War Col- 
lege, International Law Documents, p. 133.)/ 

The commission of jurists in 1923 referred to article 
15 of the 1907 Hague Convention for the Adaptation to 
Naval War of the Principles of the Geneva Convention 
which provided that — 

The shipwrecked, sick, or wounded, who are landed at a neutral 
port with the consent of the local authorities, must, unless an 
arrangement is made to the contrary between the neutral State 



KESCUE AND REPAIRS 31 

and the belligerent States, be guarded by the neutral State so as 
to prevent them again taking part in the operations of the War. 
The expenses of tending them in hospital and interning them 
shall be borne by the State to which the shipwrecked, sick, 01 
wounded persons belong. (1908, Naval War College, Inter- 
national Law Situations, p. 207.) 

The proposed rules in 1923 extended this principle 
of internment to persons brought in upon a neutral mili- 
tary aircraft in article 43 as follows : 

The personnel of a disabled belligerent military aircraft res- 
cued outside neutral waters brought into the jurisdiction of a 
neutral State by a neutral military aircraft and there landed 
shall be interned. (1924, Naval War College, International Law 
Documents, p. 134.) 

Practice in the World War was to release airmen 
rescued by nonmilitary craft whether air or marine 
when the airmen were brought within neutral jurisdic- 
tion. Whether belligerent airmen rescued by public 
neutral nonmilitary craft should be released is still 
somewhat uncertain but as the public neutral craft, 
e. g. a royal neutral yacht, would be exempt from visit 
and search, it would seem that rescued airmen should be 
liable to the same treatment when entering the neutral 
port as when rescued by a neutral vessel of war. The 
rescue of airmen and aircraft by neutral private vessels 
during the World War seems to have been followed by 
release of airmen and internment of the aircraft. 

Seaplane rescue and repairs. — It is generally admitted 
that a neutral should conduct itself in a humane manner 
toward belligerents and that such conduct toward one 
belligerent can not be regarded by the other as un- 
friendly. The seaplane when upon the surface of the 
water is according to the decisions of courts to be treated 
as a seacraft would be treated and incurs the same lia- 
bilities. The shipwrecked personnel of a belligerent ves- 
sel of war rescued by a neutral are to be treated ac- 
cording to the provisions of article 15 of the Conven- 
tion for the Adaptation to Naval War of the Principles 
of the Geneva Convention. 



32 NEUTRALITY AND AIRCRAFT 

While a naval vessel which is within a harbor in which 
24-hour sojourn is permitted, may within the period 
make repairs necessary to render the vessel seaworthy if 
it enters under its own power, if the neutral brought the 
disabled vessel in from the high sea, the vessel should be 
interned. This principle should be applied even more 
strictly to a seaplane. The Commission of Jurists in 
1923 in its report proposing article 42 said : 

The obligation on the part of the neutral Power to intern covers 
not only the aircraft, but its equipment and contents. The ob- 
ligation is not affected by the circumstances which led to the 
military aircraft coming within the jurisdiction. It applies 
whether the belligerent aircraft entered neutral jurisdiction, 
voluntary or involuntarily, and whatever the cause. It is an 
obligation owed to the opposing belligerent and is based upon 
the fact that the aircraft has come into an area where it is not 
subject to attack by its opponent. 

The only exceptions to the obligation to intern an aircraft are 
those arising under articles 17 and 41. The first relates to flying 
ambulances. Under the second, an aircraft on board a war- 
ship is deemed to be part of her, and therefore will follow the 
fate of that warship if she enters neutral ports or waters. If 
she enters under circumstances which render her immune from 
internment, such aircraft will likewise escape internment. 

The obligation to intern belligerent military aircraft enter- 
ing neutral jurisdiction entails also the obligation to intern the 
personnel. These will in general be combatant members of the 
belligerent fighting forces, but experience has already shown 
that in time of war military aeroplanes are employed for trans- 
porting passengers. As it may safely be assumed that in time 
of war a passenger would not be carried on a belligerent mili- 
tary aircraft unless his journey was a matter of importance 
to the Government, it seems reasonable also to comprise such 
passengers in the category of persons to be interned. (1924, 
Naval War College, International Law Documents, p. 133.) 

SOLUTION 

(a) The government of State Z should deny the re- 
quest of the commander of the dirigible of the air 
forces of State X to replace the hydrogen by helium. 

(b) The government of State Z should intern the 
seaplane and its personnel. 



Situation II 

NEUTRALITY AND TERRITORIAL WATERS 

States X and Y are at war. Other states are neutral. 
State R has forbidden submarines to enter its territorial 
waters, except in case of distress ; or to pass through its 
straits and archipelagoes, except on the surface and un- 
der the condition that no belligerent activities take place 
within such areas. 

(a) An air reconnaissance is being maintained ahead 
of a part of the fleet of X, which, in passing through a 
strait, between an islet and State R, 6 miles wide at either 
entrance but wider in the middle, sights on the surface a 
submarine of Y on the landward side of the islet, but 
3y 2 miles from land in a favorable position to attack the 
vessels of X. (1) Should the aircraft attack the sub- 
marine? (2) Would the situation be changed if a 
cruiser of State R is near? 

(b) The land of R consists of large islands, separated 
by wide channels or sounds whose shores are all under the 
jurisdiction of R. These channels or sounds contain 
numerous relatively small islands, islets, and barrier 
reefs, inclosing, in places, large areas of navigable wa- 
ters. Some of the entrances are narrow and navigable. 
Some are wide, and not safely navigable due to sand 
bars, reefs, and shoals. 

At a point 7 miles from any land of R, the vessels of 
X refuel from a commercial tanker of State X. From 
this area the only navigable channels are between islands 
belonging to R not more than 6 miles apart. An aircraft 
of Y sees this refueling and demands that all the vessels 
concerned be interned. 

What action should be taken ? 

33 



34 NEUTRALITY AND TERRITORIAL WATERS 

SOLUTION 

(a) (1) The aircraft of X should not attack the sub- 
marine of Y unless on grounds other than mere pres- 
ence of the submarine in the strait of R. 

(2) The presence of the cruiser of State R would 
make it more imperative that any attack by the aircraft 
of X upon the submarine of Y should be based upon 
some hostile act of the submarine of Y. 

(b) State R should intern the vessels of State X if 
they are or have been using the waters of R as a base. 

Historical hays. — During the seventeenth century there 
were many differences of opinion upon the subject of 
the limits of maritime jurisdiction. Extreme claims 
were made by some states and denied by others. The 
claims later made by the United States were not always 
consistent, save that a minimum of 3 miles has always 
been maintained. 

States have, however, generally maintained that jur- 
isdiction beyond the 3-mile limit might be exercised for 
specific purposes as fishing, revenue purposes, etc. 

Admiral Sperry^s attitude, 1907. — Admiral Sperry, a 
former president of this Naval War College, and dele- 
gate plenipotentiary to the Second Hague Peace Confer- 
ence in 1907 as member of the committee of examination 
upon the convention on the laying of automatic con- 
tact mines, when the question of the extent of territorial 
waters within which mines might be laid was under 
consideration, explained that the American proposal had 
avoided mentioning any limit on area. He said: 

The omission in the proposal of the delegation of the United 
States of America relative to submarine mines of a definite re- 
striction on the places where they may be laid is not due to any 
sympathy whatever with the general use of mines beyond ter- 
ritorial waters, a means which in common with the whole civilized 
world it condemns, but for quite other considerations. 

The term territorial waters is perhaps no more certain in its 
application than measured limits ; but the naval delegate of the 
United States is not prepared to say that a limitation in one way 



MARGINAL REEFS 35 

or another would not affect the right to defend the 4,000 miles 
of continental coast of the United States at certain points which 
must be approached through a winding channel between sub- 
merged reefs, far from the shore, where some mines would ab- 
solutely prevent access. In one island of the Philippines that is 
surrounded by reefs there is a large bay with land on all sides, 
which would shelter the fleet of the greatest Power. 

The Powers that are here represented have vast rich possessions 
in the Pacific and Indian Oceans, where the harbours and islands 
are protected by coral reef barriers, with only here and there a 
passage that may or may not be less than 10 or even a hundred 
miles from the mainland. 

The reefs may or may not be exposed at low tide. Where is 
the low-water mark? Has it been decided that all waters inside 
of reefs are territorial waters? Shall the 3 miles be measured 
from the reefs and beyond? The coast of Australia is fringed 
for more than a thousand miles by the Great Barrier Reef at a 
distance of from 20 to 150 miles from the shore. Inside this reef, 
where there is only an occasional passage, there exists a labryinth 
of lesser reefs and islets, but in the thousand miles the largest 
vessels can navigate in security under the guidance of a pilot. 
It is not necessary for a ship going to an Australian port to pass 
inside, and the interior waters can hardly be considered as form- 
ing a part of the high seas. It is not within the knowledge of the 
delegate of the United States whether they are so considered ; but 
it seems doubtful that the nationals of that great and rich com- 
munity would voluntarily abandon what might be almost a per- 
fect defence of important points. 

Many Powers represented here have vast colonial empires 
whose coasts are protected by almost perfect ramparts of coral, 
as all naval officers know, and it would be well to consider with 
care the possible effects of any conventional provision that we 
might agree upon, and that when once made would be difficult to 
denounce. (Reports to The Hague Conferences of 1899 and 1907, 
1917, pp. 664-665.) 

The committee of examination adhered to the 3-mile 
limit but the commission omitted the articles which re- 
ferred to limits of area and these articles were not in- 
serted in the convention. 

Cuba. — Around some parts of Cuba there are reefs, 
rocks, and keys and about the middle of the nineteenth 
century Spain made claims to extended jurisdiction 



36 NEUTRALITY AND TERRITORIAL. WATERS 

along the Cuban coast. These claims gave rise to much 
correspondence between the United States and Spain. 
Secretary Seward in 1863 referring to the Spanish 
claim of a 6-mile coast jurisdiction and the argument 
based on the nature of the outlying islets, etc., said: 

This ground is, that the shore of Cuba is, by reason of its 
islets and smaller rocks, such as to require that the maritime 
jurisdiction of Cuba, in order to purposes of effective defense, 
and police, should be extended to the breadth of 6 miles. The 
undersigned has examined what are supposed to be accurate 
charts of the coast of Cuba, and if he is not misled by some 
error of the chart, or of the process of examination, he has 
ascertained that nearly half of the coast of Cuba is practically 
free from reefs, rocks, and keys, and that the seas adjacent 
to that part of the island which includes the great harbors of 
Cabanos, Havana, Matanzas, and Santiago are very deep, while 
in fact the greatest depth of the passage between Cuba and 
Florida is found within 5 miles of the coast of Cuba, off the har- 
bor of Havana. 

The undersigned has further ascertained, as he thinks, that 
the line of keys which confront other portions of the Cuban 
coast resemble, in dimensions, constitution and vicinity to the 
mainland, the keys which lie off the southern Florida coast 
of the United States. The undersigned assumes that this line 
of keys is properly to be regarded as the exterior coast line, 
and that the inland jurisdiction ceases there, while the mari- 
time jurisdiction of Spain begins from the exterior sea front of 
those keys. 

In view of the considerations and facts which have been 
thus presented, the undersigned is obliged to state that the 
Government of the United States is not prepared to admit that 
the jurisdiction of Spain in the waters which surround the 
island of Cuba lawfully and rightly extends beyond the customary 
limit of 3 miles. (1 Moore, International Law Digest, p. 711.) 

In 1869, Secretary Fish in a note to the Secretary of 
the Navy said : 

The maritime jurisdiction of Spain may be acknowledged to 
extend not only to a marine league beyond the coast of Cuba 
itself, but also to the same distance from the coast line oi 
the several islets or keys with which Cuba itself is surrounded. 
Any acts of Spanish authority within that line can not be called 
into question, provided they shall not be at variance with law 
or treaties. (Ibid., p. 713.) 



SCANDINAVIAN COASTS 37 

The Spanish claim to a 6-mile jurisdiction around the 
coast of Cuba was involved in the discussion in 1864 be- 
tween the British charge and Mr. Seward as to an 
international agreement for a 6-mile limit but no action 
was taken. 

Sweden. — The coast of Sweden both within its for- 
mer and present limits has given rise to many questions 
of jurisdiction. The islands off the Swedish coast in- 
close waters of varying widths. Whether the waters 
landward of some of these coast islands or inclosed by 
some of these islands should be regarded as closed sea 
has been a matter of difference of opinion. Swedish 
legislation has sometimes referred to certain of these 
islands as archipelagoes bounding closed seas. The de- 
cree of December 20, 1912, speaking of Swedish inner 
territorial waters referred to waters between or within 
islands, islets, or reefs not continually submerged. Man- 
ifestly this is not sufficiently explicit for all cases which 
may arise off the coast of Sweden as some islands are a 
long distance from the coast, but the purpose of the 
legislation seemed to be roughly to assimilate the juris- 
diction over waters within archipelagoes to waters within 
bays. 

Scandinavian decrees. — Denmark, Norway, and 
Sweden agreed upon rules for neutrality in 1912 (1917, 
Naval War College, International Law Documents, p. 
i83) and provided that changes of the rules should be 
made only after sufficient notice to permit an exchange 
of views on the matter. 

A Swedish decree of July 19, 1916, provided that — 

Submarines belonging to foreign powers and equipped for use 
in warfare may not navigate or lie in Swedish territorial waters 
within 3 nautical minutes (5,556 meters) from land or from 
extreme outlying skerries, which are not continuously washed 
over by the sea, under peril of being attacked by armed force 
without previous warning; exception is, however, made for the 
passage through Oresund between parallels of latitude drawn 
in the north, through Viking Light (lat, north 56° 8' 7"), and, 
in the south, through Klagshamm Light (lat., north 55° 31' 2"). 



38 NEUTRALITY AND TERRITORIAL WATERS 

In the event of a submarine being compelled through bad 
weather or shipwreck to enter the forbidden area, the above reg- 
ulation is not applicable, always provided that the vessel while 
within the mentioned area, shall remain above the surface and 
fly its national flag as well as the international signal indicating 
the cause of its presence. The vessel shall leave the area as soon 
as possible after the reason for its presence there has ceased 
to exist. (Ibid., p. 215.) 

The British authorities saw in this Swedish decree 
an evidence of a marked difference in the attitude 
adopted " towards the two belligerent parties and this 
difference seems incompatible with the obligations of a 
true and impartial neutrality." (Parliamentary Papers, 
Misc. No. 8 (1917), p. 3.) The Swedish authorities re- 
sented this imputation saying " every submarine is 
treated as a belligerent submarine unless its employ- 
ment for commercial purposes is definitely proved by 
known facts." (Ibid., p. 4.) Further notes were ex- 
changed as was customary at this period of the war. 

Instructions and regulations prior to 19H. — Before 
the World War instructions, regulations, and decrees 
had been issued in regard to the use of territorial waters 
and aerial space. France by decree of October 19, 1912, 
provided for the application of XIII Hague Conven- 
tion of 1907 that the territorial waters of France may 
be considered to extend 6 miles from the low-water mark 
as a zone of neutrality and the Minister of Marine on 
December 19, 1912, stated that territorial waters of neu- 
trals should never be considered to extend less than 3 
miles from the coast or islands or reefs dependent on 
the coasts. Italy by a decree of August 20, 1909, an- 
nounced that in case of war it would establish a 10-mile 
neutrality zone. Other decrees and proclamations con- 
tained varying provisions as to maritime jurisdiction. 

Norwegian territorial waters. — By a royal decree of 
June 29, 1911, a commission of three was named to make 
an investigation in regard to the maritime frontier of 
Finmarken. In its report the commission referred to 



SCANDINAVIAN COASTS 39 

the letters patent of February 25, 1812, in which the 

king had said : 

Nous voulons avoir stipule comme regie dans tous les cas ou 
il est question de delimitation de la frontiere de notre souver- 
ainete sur les eaux territoriales, que celle-ci doit etre comptee 
jusqu'a la distance d'une lieue marine ordinaire de l'ile ou l'ilot 
le plus eloigne de la terre qui n'est pas recouvert par la mer. 
(Rapport du 29 Fevrier 1912 de la Commission da la Frontiere 
Des Eaux Territoriales. Pt. I, 1912, p. 3.) 

Norway also enacted many laws regulating fisheries 
within a league of the coast or coastal lands covered by 
the sea. 

* * * sur les mers baignant les cotes des deux provinces 
jusqu'a la distance d'une lieue geographique de la terre, k compter 
de l'ile ou l'ilot le plus eloigne que ne soit pas recouvert par la 
mer; (Ibid., p. 3.) 

This regulation of the distance had existed long before 
the union of Norway and Sweden, and in earlier days 
during the union with Denmark wider areas had also 
been claimed. Such claims had also been made at other 
times. 

The waters along the coast and about the islands of 
Norway afford examples of the varied geographical con- 
figurations and conditions but the expression determining 
the limit of territorial jurisdiction was often " a league 
from the coast reckoned from an island or islet which is 
most remote and not covered by the sea." While there 
was not much difficulty in identifying island, islet, and 
rock, there was some difficulty in interpreting " qui ne 
sont pas recouverts par le mer ". Questions arose as to 
whether this should be interpreted as exposed at high 
tide, exposed at low tide, at mean low tide, or sometimes 
exposed. The drift of opinion seems to have been for 
Scandinavian coasts that any rock or reef not constantly 
submerged would be regarded as the territory of the 
state from which the limit of territorial waters should be 
measured. 

In 1919 the United States Government issued a vol- 
ume entitled " The Extent of the Marginal Sea " pre- 



40 NEUTRALITY AND TERRITORIAL WATERS 

pared by Henry G. Crocker. This volume contained a 
translation of some of the Report of the Norwegian 
Commission, in part as follows: 

In the opinion of the present Commission, the terms of the 
letters patent admit of only one certain solution, which is that 
rocks which are always under water must not be taken into 
consideration in any case. But the words in themselves may 
mean " which are never under water," " which are not usually 
under water," " which are not generally under water," " which 
are not continually under water," " which are not under water 
all the time," and according to any of these and many other in- 
terpretations ; they may be used in the sense of high and low 
tide, at ordinary times or at the time of spring tides, or in the 
sense of the mean sea level so as to include or exclude rocks 
of a totally different character from those that are under water 
at high tide at the time of spring tides to those which at such 
times are above water at low tide. 

There being no indication in the wording of the text itself, 
the most equitable method is for the Commission to draw its 
own conclusions based upon the following considerations : the 
rescript of June 18, 1745, where the term "shoals" (hauts-fonds) 
appears alongside of the term " rocks," leads to the belief that 
the boundary line is to be measured from the rocks which are 
not continually under water, and subsequent rescripts certainly 
did not have in view any modification in this respect ; construed 
in this way, the different rescripts relating to the one league 
boundary line lay the minimum of restriction upon the old claim 
of a more extensive boundary. If the expressions used in the 
letters patent, which came later, are equivocal, they must pref- 
erably be given the meaning which agrees with the old right, 
and the words " which are not under water " must be inter- 
preted as excluding rocks which are always under water. * * * 

It may be asked whether we should take into consideration any 
rock at all, whatever its distance from shore and place the 
boundary line of our territorial waters one league beyond it. The 
letters patent lay down no restrictions, neither can an order of 
this nature — it does not attempt to trace the boundary line in all 
its details along the coast — undertake to give exact indications on 
this subject. 

It would seem, however, to be equitable to take into account, in 
any event, rocks that are not more than two geographical leagues 
distant. If a circle with a one league radius be drawn around 
such a rock (the width fixed upon for the territorial sea), this 
circle will touch a line drawn the same distance from the coast. 



NORWEGIAN COMMISSION 41 

It may also happen — and this is indeed the case with our 
country — that there are certain rocks strung out from shore and 
so closely connected therewith that the boundary line must mani- 
festly be placed one league beyond the farthest out, as the letters 
patent provide. 

If there is an isolated rock at a greater distance than two 
leagues from land, its importance must of course be determined 
according to the circumstances. 

If it should be necessary to lay down in principle what rocks 
along the coast are to be considered as " the farthest out," the 
method most in conformity with the terms of the letters patent 
of 1812 — which make the boundary line pass beyond the most 
distant islands and islets and do not even mention the coast 
line of the mainland — would be to consider as Norwegian the 
entire area of the sea between these rocks and the shore and to 
extend the boundary line of the territorial waters one league 
beyond the straight lines drawn from rock to rock. If the pro- 
vision of the law gives any indication, it would seem to be that 
its intention is to consider the islands and islets as so many 
connecting points of the basic lines. In this way we obviate 
in general the necessity of drawing the boundary line in the 
shape of an arc beyond the rocks (or in the shape of semicircles 
around them with a one league radius), as well as of drawing 
a complete circle around a particular rock which is given a parcel 
of territorial sea separate from the rest of the zone. 

How far apart, however, should two of " the most distant " 
rocks be to admit of the drawing of such a connecting line, from 
which the boundary of the territorial waters shall be measured? 
Lines should be drawn, at any rate between rocks that are not 
more than two leagues apart; but it will be necessary to con- 
sider the particular circumstances in each instance. 

We must pursue the same course when it is a question of 
determining the boundary line off the coast where the " skjaer- 
gaard " begins and where the coast assumes the character of a 
fjord at whose entrance there are rocks. 

The various circumstances to be taken into consideration in 
each particular instance may be of a historical, an economic or 
a geographical nature ; for example, a time-honored conception 
with regard to the boundary, and undisturbed possession of 
fisheries carried on by the population along the coast since time 
immemorial and necessary to its existence; the practical ad- 
vantages of a line easy to ascertain on the spot ; the natural 
boundaries of fishing banks. (Crocker, The Extent of the 
Marginal Sea. 1919, pp. 613-616.) 



42 NEUTRALITY AND TERRITORIAL WATERS 

Differing neutrality rules. — Neutrality proclamations 
are not uniform. One state may even prescribe more 
stringent regulations for one part of its dominions than 
for another part. The geography and other conditions 
may influence the character of the regulations, i. e., a 
state may prescribe certain regulations for its main- 
land while making different regulations for its remote 
dependencies. The Netherlands announced in 1914 more 
stringent regulations for entrance to its continental ter- 
ritorial waters by belligerent vessels of war than for 
such entrance to the waters of its oversea possessions. 

Owing to the comparatively recent use of the air by 
aircraft, the rules are less well established than for ter- 
ritorial waters. Uncertainty as to the possible use of the 
air by belligerents during the World War led neutrals 
to enunciate rules that may have been more extreme than 
neutrality requires. This seems to have been true in re- 
gard to submarines when the rules proposed by the 
Washington Conference on Limitation of Armament, 
1921-22, are compared with those adopted by the Lon- 
don Conference in 1930. 

It may, therefore, be open to question whether the 
dirigible belonging to a belligerent air force should be 
subject to special restrictions in a neutral airport to 
any greater degree than a belligerent cruiser in a mari- 
time port. It is true that there has always been a tend- 
ency to put special restrictions upon novel means of war- 
fare. It may, however, not be any more logical to re- 
trict aircraft specially because of speed or the use of 
the air than specially to restrict fast cruisers or subma- 
rines on account of speed or use of novel methods of 
navigation. The hydroplane may be part of the time 
upon the surface of the water and part of the time above 
and the submarine may similarly be on and below the 
surface. 

It is true that the Commission of Experts in 1923 
drew up regulations at The Hague placing special disa- 



SPECIAL PKOVISIONS 43 

bilities upon aircraft by stringent limitations in time of 
war. The feeling at that time was still influenced by 
events of the World War and aircraft were not so widely 
and generally used as in later years. In 1899 the dis- 
charge of projectiles and explosives from aircraft for a 
period of five years was prohibited by a declaration 
drawn up at The Hague and this declaration was gen- 
erally ratified. A declaration in 1907 to like effect to 
extend to the close of the Third Peace Conference, pro- 
posed for but not held in 1915, was not even signed by 
some of the leading states. 

The Hague regulations of 1923 have not been ratified 
and probably would require extended modification to 
meet present conditions. Aircraft are much more com- 
monly used than in 1923. Regular routes are established. 
Mails are regularly dispatched by aircraft. Passengers 
rely on air service to reach their destinations on time. 

If there are to be neutrals in time of war, their rights 
should be entitled to respect and neutrals should be en- 
titled to communicate with the belligerents in the custom- 
ary manner save they must not be of either party in the 
war. 

Special provisions. — While there is a general support 
of the 3 -mile limit of jurisdiction over the marginal sea 
at the present time, there are many states which claim 
wider jurisdiction. Some states make these wider claims 
on grounds of long practice, some on geographical con- 
figuration and others on special national grounds. The 
United States has negotiated a large number of treaties 
regarding the suppression of the traffic in alcoholic 
liquors in which there are expressions showing that the 
parties intend "to uphold the principle that 3 marine 
miles extending from the coastline outwards and meas- 
ured from low-water mark constitute the proper limits 
of territorial waters." Some states have negotiated such 
treaties with the proviso that " The High Contracting 
Parties respectively retain their rights and claims, with- 

138120—32 4 



44 NEUTRALITY AND TERRITORIAL WATERS 

out prejudice by reason of this agreement, with respect 
to the extent of their territorial jurisdiction." France, 
which has such a proviso, has maintained that it would 
be difficult to reach an agreement on the breadth of terri- 
torial waters saying : 

The political, economic and social interests of coastal States 
are not only different, but often conflicting, on account of the 
position and geographical configuration of the territory and coasts 
of those States. (Conference for the Codification of International 
Law, Vol. II, Territorial Waters, League of Nations, C. 74, M. 
39, 1929, V, p. 28.) 

The "Anna" 1805. — An early case showed the sound- 
ness of Sir William Scott's (Lord Stowell) reasoning 
even when considering a foreign state. In the case of 
the Anna, 1805, he said: 

The capture was made, it seems, at the mouth of the Missis- 
sippi, and, as it is contended in the claim, within the boundaries 
of the United States. We all know that the rule of law on this 
subject is " terrae dominium ftnitur, ubi finitur armorum vis," 
and since the introduction of firearms, that distance has usually 
been recognized to be about 3 miles from the shore. But it so 
happens in this case, that a question arises as to what is to be 
deemed the shore, since there are a number of little mud islands 
composed of earth and trees drifted down by the River, wiiich 
form a kind of portico to the main land. It is contended that 
these are not to be considered as any part of the territory of 
America, that they are a sort of " no mans land," not of con- 
sistency enough to support the purposes of life, uninhabited and 
resorted to, only, for shooting and taking birds nests. It is 
argued that the line of territory is to be taken only from the 
Balise, which is a fort raised on made land by the • former 
Spanish possessors. I am of a different opinion ; I think that 
the protection of territory is to be reckoned from these islands ; 
and that they are the natural apendages of the coast on 
which they border, and from which indeed they are formed. 
Their elements are derived immediately from the territory, and 
on the principle of alluvium and increment, on which so much 
is to be found in the books of law, Quod vis fluminis de tuo 
praedio detraxerit, & vicino praedlo attulerit, palam tuum 
rcmanet, even if it had been carried over to an adjoining ter- 
ritory. Consider what the consequence would be if lands of 
this description were not considered as appendant to the main- 



BRITISH POSITION^ 19 24 45 

land, and as comprized within the bounds of territory. If they 
do not belong to the United States of America, any other power 
might occupy them ; they might be embanked and fortified. 
What a thorn would this be in the side of America ! It is phys- 
ically possible at least that they might be so occupied by European 
nations, and then the command of the River would be no longer 
in America, but in such settlements. The possibility of such a 
consequence is enough to expose the fallacy of any arguments 
that are addressed to shew, that these islands are not to be con- 
sidered as part of the territory of America. Whether they are 
composed of earth or solid rock, will not vary the right of do- 
minion, for the right of dominion does not depend upon the 
texture of the soil. 

I am of opinion that the right of territory is to be reckoned 
from those islands. That being established, it is not denied 
that the actual capture took place within the distance of 3 miles 
from the islands, and at the very threshold of the river. (5 C. 
Robinson, Admiralty Report, pp. 373, 385b.) 

British position, J9&4. — In reply to the questionnaire 
sent out by the League of Nations preparatory to the 
Conference for the Codification of International Law 
differing replies were received. As to the breadth of 
territorial waters, Great Britain, saying that the Brit- 
ish Government made no claim to exercise jurisdiction 
beyond the 3-mile limit, nevertheless, stated: 

There are certain banks outside the 3-mile limit off the coasts 
of various British dependencies on which sedentary fisheries 
of oysters, pearl oysters, chanks or beches de mer on the sea 
bottom are practised, and which have by long usage come to be 
regarded as the subject of occupation and property. The fore- 
going answer is not intended to exclude claims to the sedentary 
fisheries on these banks. The question is understood to relate 
only to claims to exercise rights over the waters of the high seas. 

(d) Claims by foreign States to exercise rights of jurisdiction 
or control over the waters of the high seas adjacent to the belt 
of territorial waters of those States have never been admitted 
and have always been objected to by His Majesty's Government 
in Great Britain. 

His Majesty's Government admit that the speed of modern 
vessels and aircraft and the immense range and power of mod- 
ern implements of warfare may render a belt of 3 miles insuf- 
ficient to prevent injurious consequences resulting in the national 
territory from acts which have taken place on the high seas, 



46 NEUTRALITY AND TERRITORIAL WATERS 

but this affords no sufficient argument for a change in the 3-mile 
limit. To ensure that no injurious consequence should result 
within the national territory from an act which has taken place 
on the high seas, it would be necessary to establish a belt so 
wide as to constitute a serious encroachment on the high seas. 
A belt of such width would lead to perpetual disputes. The 
difficulty of determining with accuracy whether a vessel is 
within the coastal belt would be increased very largely if the 
width of that belt were increased, as the greater the distance 
from the shore the more difficult it is to fix by reference to the 
shore the exact position of the vessel. Furthermore, the burden 
imposed on neutral States in time of war would be intolerable. 

His Majesty's Government accept the view that no State can be 
expected to tolerate with equanimity circumstances arising un- 
der which, owing to peculiar local circumstances, the absence of 
jurisdiction over foreign vessels on the high seas immediately 
contiguous to its territorial waters may prejudice gravely the 
enforcement of the laws or the well-being of the community 
within its territory. 

Where such circumstances arise, it is the duty of any foreign 
State to come to an agreement enabling the State concerned to 
exercise such rights of control over the merchant vessels of the 
foreign State concluding the agreement as may be necessary. 
For a State to refuse to enter into an agreement of this kind 
would be to show an entire absence of the consideration for the 
rights of other States upon which the solidarity of nations de- 
pends. (Conference for the Codification of International Law, 
Vol. II, Territorial Waters, League of Nations, C. 74, M. 39, 1929, 
V, p. 28.) 

India assumed the same position, and Australia said : 

They make no claim to exercise rights over the high seas out- 
side the belt of territorial waters. This answer is made on the 
understanding that the question relates only to claims to exer- 
cise sovereign rights over the waters of the high seas, and does 
not relate to claims to exercise jurisdiction over sedentary fish- 
eries for pearl oysters and baches de mer, etc., on certain portions 
of the sea bottom outside the 3-mile limit which by long usage 
have come to be regarded as the subject of occupation and prop- 
erty. (Ibid., p. 24.) 

Hague Report, 1923. — The Report of the Commission 
of Jurists, 1923, appointed to consider new agencies of 
warfare submitted certain rules that have not been rati- 
fied but are the latest expression of the result of of- 



COMMISSION OF JURISTS, 192 3 47 

ficial international deliberation. Articles 47 and 48 of 
these rules provide : 

"A neutral State is bound to take such steps as the means at its 
disposal permit to prevent within its jurisdiction aerial obser- 
vation of the movements, operations or defences of one belliger- 
ent, with the intention of informing the other belligerent." 

The prohibition of aerial observation within neutral terri- 
tory on belligerent account must apply equally to the case of 
aircraft on board belligerent warships when in neutral waters. 
To avoid all misconception on this point, the following para- 
graph has been added : 

" This provision applies equally to a belligerent military air- 
craft on board a vessel of war." 

The measures which a neutral Government may be obliged to 
take to compel respect for its rights may entail the use of force; 
fire may have to be opened on foreign aircraft, even military 
aircraft of another State. Following the analogy of article 10 
of Convention V of 1907 (Rights and Duties of Neutral Powers 
in Land War) and article 26 of Convention XIII (Rights and 
Duties of Neutral Powers in Maritime War), it has been thought 
well to declare that the measures, even of force, taken by a 
neutral Power for this purpose cannot be regarded as acts of war. 
Still less could they be regarded as unfriendly acts, seeing that 
they are taken in specific exercise of rights conferred or recognised 
by treaty. 

It may be well to add that the neutral Government will not be 
responsible for any injury or damage done to the aircraft or 
other object. 

" Article 48 

" The action of a neutral Power in using force or other means 
at its disposal in the exercise of its rights or duties under these 
rules cannot be regarded as a hostile act." (1924, Naval War 
College, International Law Documents, p. 136.) 

The report of the commission had also referred to 
differences in the proposed limits of airspace and terri- 
torial waters saying: 

On principle it would seem that the jurisdiction in the air- 
space should be appurtenant to the territorial jurisdiction en- 
joyed beneath it, and that in the absence of a territorial juris- 
diction beneath, there is no sound basis for jurisdiction in the 
air. (Ibid., p. 152.) 



48 NEUTRALITY AND TERRITORIAL WATERS 

League of Nations committee, 1926. — The League of 
Nations Committee of Experts for the Progressive 
Codification of International Law in 1926 communi- 
cated the report of a subcommittee on the law of ter- 
ritorial waters to the governments. The subcommittee 
stated that " The question of territorial waters involves 
a number of difficult problems of international law." 
The subcommittee found that many attempts had been 
made to formulate the law of territorial waters and that 
most diverse theories had been put forward upon the 
subject. 

League of Nations draft, 1926. — The draft of a con- 
vention as submitted by Professor Schucking after dis- 
cussion with the committee of experts appointed by the 
League of Nations as prepatory to the codification of 
the law of territorial waters, after escaping the 3-mile 
limit for coast waters and the 10-mile limit for bays, con- 
tained the following: 

Article 5 
Islands 

If there are natural islands, not continuously submerged, sit- 
uated off a coast, the inner zone of the sea shall be measured 
from these islands, except in the event of their being so far 
distant from the mainland that they would not come within the 
zone of the territorial sea if such zone were measured from the 
mainland. In such case, the island shall have a special terri- 
torial sea for itself. 

In the case of archipelagoes, the constituent islands are con- 
sidered as forming a whole and the width of the territorial sea 
shall be measured from the islands most distant from the centre 
of the archipelago. 

Article 6 
Straits 

The regime of straits at present subject to special conventions 
is reserved. In straits of which both shores belong to the same 
State, the sea shall be territorial, even if the distance between 
the shores exceeds 10 miles, provided that that distance is not 
exceeded at either entrance to the Strait. (League of Nations 
Document, C. 196, M. 70, 1927, V. p. 72.) 



ATTITUDE OF POKTUGAL, 19 26 49 

Attitude of Portugal, 1926.— -In replying to the 
League of Nations questionnaire as to territorial waters 
m 1926, the Portuguese Government said : 

Article V. If there are natural islands, not continuously sub- 
merged, situated off a coast at a distance from the coast not 
above 24 miles, the zone of the territorial sea shall be measured 
from these islands. When the distance of the islands from the 
joast is above 24 miles, these islands shall have a territorial sea 
for themselves, as if they were part of the mainland. 

In the case of an archipelago, the component islands shall be 
considered as forming a whole, and the width of the territorial 
sea shall be measured from the islands most distant from the 
centre of the archipelago (see Observations). (League of Nations 
Documents, C. 196, M. 70, 1927, V [C. P. D. I. 95 (2)], p. 189.) 

The observations to which reference is made are as 
follows : 

Portugal is unable to forego a very much wider limit to her 
territorial waters than 3 miles, since it is absolutely necessary 
for her to preserve the species of fish which inhabit her waters, 
these fisheries contributing largely towards the feeding of her 
population and the employment of her industries. If these spe- 
cies become rare or disappear Portugal's economic crisis, which 
is already acute, will be considerably aggravated. 

What is true of Portugal is also true of many other coun- 
tries and therefore this claim does not constitute a special 
case. This extended limit has indeed become an established 
usage in Portugal and in other countries, and is embodied in 
the legislations of Portugal and various nations, as was first 
pointed out in detail by the distinguished Professor Shucking 
in his masterly report to the Committee of Experts for the 
Progressive Codification of International Law. Beyond doubt, 
the present needs of the nations are of more importance than 
traditions and ancient usage, and therefore Portugal demands 
the extension to 12 miles of the limit of territorial waters, as 
being more in conformity with present practice and the present 
needs of the majority of States. If, however, for one reason 
or another, this extension is impossible, Portugal considers that 
a minimum limit of 6 miles should be fixed and that States 
should have the right, in order to satisfy their vital needs or 
those of their defence, to exercise administrative rights over 
a further zone of 6 miles beyond the zone of their sovereignty. 

The limits for islands, archipelagoes, bays and straits were 
fixed on the supposition that the limit of territorial waters 



50 NEUTRALITY AND TERRITORIAL WATERS 

was itself extended to 12 miles ; if this limit is lowered, it will 
be necessary also to restrict the zones fixed for these special 
cases. (Ibid., p. 191.) 

Sweden, 1926. — The Swedish Government in replying 
to the League of Nations questionnaire in 1926 pointed 
out that Sweden had for more than 100 years main- 
tained a 4-mile claim to jurisdiction off the coast and that 
12-mile limit for bays would be essential for Sweden. 

As to islands and straits, the Government said: 

Article 5. — Islands. 

One observation is necessary with regard to the wording of 
this article. If the centre of an archipelago is regarded as the 
point for determining the isles from which the calculation of 
territorial waters is to commence, the provision regarding archi- 
pelagos would seem to apply only to those which are situated 
in the open sea ; it could not, for instance, apply to groups 
which, like the Swedish coastal archipelagos (skargard), fringe 
the shoreline. To make Article 5 applicable to the conditions 
of Swedish geography, it would therefore be necessary to add 
a provision to the effect that when an archipelago fringes the 
coast, the extent of the territorial waters shall be calculated as 
commencing from the islands and reefs furthest from the coast. 
Article 6. — Straits. 

The drafting of Article 6 also calls for an observation on 
the part of the Swedish Government. In certain respects this 
article is not quite clear, as, for instance, the provision which 
lays down " the regime of straits at present subject to special 
conventions." Does this provision mean that if two States whose 
coast line borders certain straits conclude an agreement dividing 
the whole of the straits between them, this agreement can be 
invoked against third parties, even when, under the convention 
now proposed, the straits also include international waters? 
According to the Rapporteur's original draft, which fixed the 
extent of the territorial waters at 6 nautical miles in general, 
straits not exceeding 12 miles in width were to belong entirely 
to the riparian States. The extent of territorial waters having 
been reduced to 3 nautical miles in the Rapporteur's second 
draft, the logical consequence would have been to regard as 
entirely territorial waters only those straits which are less than 
6 nautical miles in breadth, or — when both shores of the straits 
belong to the same State — those which are not more than 6 
nautical miles wide at their opening towards the sea. The draft, 
however, fixes at 10 miles the maximum width of straits which 



SCANDINAVIAN ATTITUDE, 1926-192 7 51 

are to form part of the territorial sea of the coastal States. 
The meaning of the formula " straits not exceeding 10 miles 
in width " is also somewhat uncertain, for there is nothing 
to show whether this formula only applies to straits which do 
not exceed 10 miles in width at any point or whether it refers 
to those parts of straights where the width is 10 miles or less, 
whereas in other parts their width is more than 10 miles. 

Moreover, as regards the Swedish standpoint in this matter, 
the Swedish Government would point out that, since the Treaty 
of Roskilde in 1658, one-half of the Sund has been regarded 
as a Swedish territorial sea. Similarly the Straits of Kalmar, of 
which both sides belong to Sweden, are regarded as entirely 
Swedish territorial waters. At their opening towards the sea 
these two straits are both slightly over 10 nautical miles in 
width. (League of Nations Documents, C. 196, M. 70, 1927, V. 
[C. P. D. I. 95 (2)], p. 232.) 

Norwegian opinion, 19%7. — In reply to the question- 
naire preparatory to the meeting of the Committee on 
the Codification of International Law, the Norwegian 
Government in a letter of March 3, 1927, said: 

Article 2. — Extent of the Rights of the Riparian State. — ■ * * * 
As regards the tracing of the boundaries, it should be ob- 
served that the series of fjords and archipelagos (skargard) 
which are so characteristic a feature of the peculiar Norwegian 
coast line, with its numerous fjords penetrating right into the 
heart of the country and with its countless islands, large and 
small, islets and rocks scattered in a wide band along practi- 
cally the whole of the coast, has made it quite impossible for 
Norway to trace a boundary for her territorial waters corre- 
sponding to all the sinuosities of her coast line and skargard. 
The boundary has therefore been drawn at a distance of 1 geo- 
graphical league from the extreme edge of the coast at low 
tide or from straight lines drawn between the last outlying 
islets or rocks not constantly covered by the sea, while, out- 
side the bays and fjords (which from the most ancient times have 
been regarded and claimed in extenso as internal Norwegian 
waters), the limit has been measured from a line drawn between 
the two farthermost seaward ends of the coast (mainland, isle 
or islet). 

The Norwegian Government considers that, in these circum- 
stances, it would be desirable — and, if Norway is to adhere to 
the proposed Convention, necessary — so to draft the present 
article that, as regards the extent and delimitation of the zone 



52 NEUTRALITY AND TERRITORIAL WATERS 

of sovereignty itself, it should, like Article 4, which relates to 
bays, take into proper account a peculiar de facto situation 
which has been consecrated by continuous and century-old usage. 

In the opinion of the Norwegian Government, it would be 
neither natural nor reasonable to fix an identical limit of terri- 
torial waters for all coasts without taking into account the 
various characteristics of the latter and without making due 
allowance for the varying importance, from the point of view 
of national economy and the very existence of the inhabitants, 
of the question of maintaining for the coastal population an 
exclusive right to exploit the economic wealth of the territorial 
sea. It would not even seem necessary to fix a standard bound- 
ary and we do not see how it would be possible to obtain such 
a result on the lines laid down in the draft Convention. * * * 

Article 5. — Islands. — As stated above, the boundary of Nor- 
wegian territorial waters is, according to Norwegian law, traced 
at a distance of 1 geographical league from the islands, islets 
or rocks farthest seaward which are not constantly covered by 
the sea. The general provision at present in force on this sub- 
ject, contained in a Chancellery Memorandum of February 25, 
1812, does not stipulate any limit as regards the distance between 
these islands, islets and rocks and the mainland ; it thus pro- 
vides for a territorial sea extending in one continuous band along 
the coast to a distance of 1 geographical league from the islands, 
islets or rocks farthest seaward without taking account of the 
distance which separates the latter from the continental coast 
line. 

In conformity with the observations it has felt bound to offer 
in connection with Article 2 of the Draft, the Norwegian Gov- 
ernment feels that it would be desirable to draft the passages 
of Article 5, which concern the delimitation of territorial waters 
around islands, in such a way as to bring them reasonably into 
line with Norwegian law on this subject, which owes its origin 
to the peculiar geographical conditions of the country and has 
been consecrated by continuous and century-old usage. (League 
of Nations, Report to the Council, C. 196, M. 70, 1927, V 
[C. P. D. I. 95 (2)], p. 173.) 

Control of straits. — The most recent discussion of the 
control of waters of straits is that carried on by the Har- 
vard Law School Research in International Law which 
acted through a committee made up of men familiar with 
international law and from all parts of the United 
States. After wide research and discussion, the report 



CONTROL OF STRAITS 53 

made in 1929 upon the article relating to straits was 
with some omissions and some additions as follows: 

Article 10 

A strait connecting high seas shall remain open to navigation 
by the private and public vessels of all states, including vessels of 
war. 

Comment. — This article states the existing rule of in- 
ternational law which requires that straits connecting 
high seas shall be open to navigation. This rule applies 
even though the land on both sides is a part of the terri- 
tory of a single state ; it applies to all straits. 

The Straits to which negotiations have most often re- 
lated are the Bosphorus and Dardanelles, the Danish 
Sounds and Belts, and the Straits of Magellan. 

b. Bosphorus and Dardanelles. — The Bosphorus is 
about 18 miles long and from % to 1% miles wide. The 
Dardanelles is about 40 miles long and from 1% to 4 
miles wide. 

In the Near East the struggle for dominance has made 
the Straits question one of the major matters of Euro- 
pean policy. Turkey long in possession of the area bor- 
dering upon the Black Sea assumed full authority over 
the waters at its entrance. From the end of the eight- 
eenth century navigation of the Black Sea and the 
Straits became a matter of international negotiation. 

The treaty of Belgrade, September 18, 1739, between 
Russia and Turkey provides in article 3 " Que la Russie 
ne pourra, ni sur la mer de Zabache (Sivache), ni sur la 
mer Noire, construire et avoir de flotte et d'autres na- 
vires " (I Noradounghian, Recueil d^Actes Internatio- 
naux de V Empire Ottoman, p. 260), and in article 9 " Et 
reciproquement il sera permis a tous les marchands sujets 
de l'Empereur des Russies, d'exercer aussi librement le 
commerce dans les etats de la Porte Ottomane. Mais, 
pour ce qui regarde le commerce des Russes sur la mer 
Noire, il sera fait sur les batiments appartenants aux 
Turcs." (Ibid., p. 262.) 



54 NEUTRALITY AND TERRITORIAL WATERS 

By the treaty of July 13, 1841, in article 1 it was 
stated : " Sa Hautesse le sultan declare qu'il a la ferme 
resolution de maintenir a l'avenir le principe invariable- 
ment etabli comme ancienne regie de son empire, et en 
vertu duquel il a etc de tout temps defendu aux bati- 
ments de guerre des puissances etrangeres d'entrer dans 
les detroits de Dardanelles et du Bosphore et que tant 
que la Porte se trouve en paix, Sa Hautesse n'admettra 
aucun batiment de guerre etranger dans les dits detroits," 
" et leurs Majestes * * * de l'autre part, s'engagent 
a respecter cette determination du Sultan, et a se con- 
former au principe ci-dessus enonce." (Martens, N. R. 
G. 1841, II, p. 128.) Thus the position of Turkey in 
control of the Straits seemed to be confirmed and was 
reaffirmed by the treaty of 1856. Many volumes have 
been written upon various aspects of the questions of 
closing the Black Sea and the Straits. 

The United States not being a party to these treaties 
did not recognize the control of the Bosphorus and 
Dardanelles as a right though it was impossible to deny 
the usage. 

The World War introduced new problems which are 
not yet settled. Article 178 of the treaty of Sevres, Au- 
gust 10, 1920, proposed to guarantee the freedom of the 
Straits. Upon general principles of law apart from all 
considerations of politics, there seems no reason for 
maintaining that the Black Sea is a closed sea and that 
the Straits are under the control of Turkey any more 
than there might be for contending that the Baltic Sea 
is a closed sea and that the sounds may be closed. 

Danish Sounds. — The claim that the Baltic Sea should 
be a closed sea has been made for varying reasons. 

Under article 5 of the treaty between the United 
States and Denmark of 1826 it was agreed that " Nei- 
ther the vessels of the United States nor their cargoes 
shall, when they pass the Sound of the Belts, pay higher 
or other duties than those which are or may be paid 
by the most favored nation." (8 U. S. Stat. 340.) This 



CONTROL OF STEAITS 55 

treaty was to remain in effect for 10 years and for " one 
year after either of the contracting parties shall have 
given notice to the other of its intention to terminate 
the same. >: 

The United States in 1855 gave notice of the termi- 
nation of the treaty of 1826 and a new treaty was nego- 
tiated in 1857 by which, in article 1, entire freedom of 
navigation was declared for American vessels in the 
Sound and Belts. (11 Stat. 719.) The United States 
in consideration of the Danish engagement to keep up 
lights and buoys and to make " additions and improve- 
ments in regard to the lights, buoys and pilot establish- 
ments " as might be required, agreed to pay to Den- 
mark $393,011. Certain European powers similarly 
accepted their respective quotas by a conventional 
agreement. The Sound dues were no longer collected 
and the navigation between the North Sea and the Baltic 
became free. 

Under the public law of nations it can not be pretended that 
Denmark has any right to levy duties on vessels passing through 
the sound from the North Sea to the Baltic. Under that law 
the navigation of the two seas connected by this strait is free 
to all nations; and therefore the navigation of the channel by 
which they are connected ought also to be free. In the lan- 
guage employed by Mr. Wharton ° even if such strait be bounded 
on both sides by the territory of the same sovereign and is at the 
same time so narrow as to be commanded by cannon-shot from 
both shores, the exclusive territorial jurisdiction of that sover- 
eign over such strait is controlled by the right of other nations 
to communicate with the seas thus connected." (House Ex. Doc. 
108, 33 Cong., 1 sess., 1848, pp. 38-39.) 

Straits of Magellan. — The Straits of Magellan, about 
300 miles long and from 2^ to 11 miles wide form a 
convenient passage between the great oceans which wash 
the coasts of the South American continent. At the 
eastern entrance the Argentine Republic and Chile have 
territory upon opposite shores though the most of the 
Straits is wholly between Chilean shores. 



56 NEUTRALITY AND TERRITORIAL WATERS 

The treaty of 1848 between these states gave rise to 
many difficulties. At length by the treaty of July 23, 
1881, between the Argentine Republic and Chile, it was 
agreed, "Article 5. Le Detroit de Magellan demeure 
neutralise a perpetuite et sa libre navigation est assuree 
aux pavilions de toutes les nations. Ann d'assurer le re- 
spect de cette liberte et de cette neutrality il ne sera con- 
struit sur ses cotes, ni fortifications, ni ouvrages de de- 
fense militaire qui puissent contrarier ce but." (Martens, 
N. R. G. XII, 2e Ser. 491; 72 Brit, and For. State 
Papers, p. 1103.) 

The World War conditions gave rise to questions as to 
the nature of the neutrality under the treaties. As the 
greater part of the Straits of Magellan is under the 
jurisdiction of Chile, that state early made known its 
attitude. A decree of December 15, 1914, stated, " In 
reference to the neutrality established in the decree 
No. 1857 of November 5 last of the ministry of foreign 
affairs, the interior waters of the Straits of Magellan 
and the canals of the southern region, even in parts 
which are distant more than 3 miles from either bank, 
should be considered as forming part of the jurisdictional 
or neutral sea." (1916 Naval War College, International 
Law Topics, p. 21.) 

In the case of the Bangor coming before the British 
Prize Court in 1916, it was said : 

The limits of territorial waters, in relation to national and 
international rights and privileges, have of recent years been 
subject to much discussion. It may well be that the old marine 
league, which for long determined the boundaries of territorial 
waters, ought to be extended by reason of the enlarged range 
of guns used for shore protection. 

This case does not, in my view, call for any pronouncement 
upon that question. I am content to decide the question of 
law raised by the claimants upon the assumption that the cap- 
ture took place within the territorial waters of the Republic 
of Chile. This assumption, of course, does not imply any expres- 
sion of opinion as to the character of the Strait of Magellan 
as between Chile and other nations. This strait connects the 



THE " BANGOR " 57 

two vast free oceans of the Atlantic and Pacific. As such, 
the strait must be considered free for the commerce of all 
nations passing between the two oceans. 

In 1879 the Government of the United States of America 
declared that it would not tolerate exclusive claims by any na- 
tion whatsoever to the Strait of Magellan, and would hold re- 
sponsible any Government that undertook, no matter on what 
pretext, to lay any impost on its commerce through the strait. 
Later, in 1881, the Republic of Chile entered into a treaty with 
the Argentine Republic by which the strait was declared to be 
neutralized forever, and free navigation was guaranteed to the 
flags of all nations. 

I have referred to these matters in order to show that there 
is a right of free passage through the strait for commercial pur- 
poses. It is not inconsistent with this that, during war between 
any nations entitled to use it for commerce, the strait should be 
regarded in whole or in part as the territorial waters of Chile, 
whose lands bound it on both sides. 

Upon the assumption made for the purposes of this case that 
the Bangor was in fact captured within the territorial waters of 
a neutral, the question is whether the vessel was immune from 
legal capture and its consequences according to the law of na- 
tions. In other words, can the owners of the vessel, who aie, 
ex hypothesi, to be treated as enemies, rely upon the territorial 
rights of a neutral State and object to the capture? Or must the 
objection to the validity of the capture come from the neutral 
State alone? 

No proposition in international law is clearer, or more surely 
established, than that a capture within the territorial waters of 
a neutral is, as between enemy belligerents for all purposes right- 
ful; and that it is only by the neutral State concerned that rhe 
legal validity of the capture can be questioned. ( [1916], Probate, 
p. 181.) 

Straits connecting open seas. — Extreme claims as to 
straits had been made at various times as the English 
claims to Bristol and St. George's Channels. As in the 
case of the Danish Sounds, these have gradually disap- 
peared. The United States properly contended that any 
freedom of the seas or freedom of navigation would be 
largely a fiction if passage between the different seas 
might be closed at the will of the shore states or if a tax 
were levied for simple passage. 



58 NEUTRALITY AND TERRITORIAL WATERS 

It is a source of much satisfaction to Her Majesty's Government 
that the initiative in bringing this question to a final settlement 
should have been taken by the Danish Government, for altho the 
right to levy dues upon foreign vessels passing through the Sound 
has been recognized by the different powers of Europe, and had 
become a part of the international law of Europe, yet it has long 
been apparent that a tax which is oppressive to commerce, for 
which no benefit is offered in return to foreign shipping * * * 
could not be permanently maintained. (46 Brit, and For. State 
Papers, 1855-1856, p. 661. ) 

The resolutions adopted by the Institut de Droit In- 
ternational, at its session in 1892 provide : 

Article 10. Les dispositions des articles precedents s'appliquent 
aux detroits dont l'ecart n'exede pas douze milles, sauf les modi- 
fications et distinctions suivantes: 

1. Les detroits dont les c6tes appartiennetnt a des Etats dif- 
ferents font partie de la mer territoriale des Etats riverains, qui 
y exerceront leur souverainete jusqu'a la ligne mediane. 

2. Les detroits dont les cotes appartiennent au meme Etat et 
qui sont indispensables aux communications maritimes entre 
deux ou plusieurs Etats autres que l'Etat riverain font toujours 
partie de la mer territoriale du riverain, quel que soit le reap- 
proachement des cotes. 

3. Les detroits qui servent de passage d'une mer libre & une 
autre mer libre ne peuvent jamais etre fermes. 

Article 11. Le regime des detroits actuellement soumis & des 
conventions ou usages speciaux demeure reserve. (13 Annuaire, 
p. 330.) 

Treaties and conventions. — The status of straits has 
often been a subject of treaty regulation. An early ex- 
ample is the treaty between Great Britain and Kussia, 

1825: 

Article III. Commencing from the Southernmost Point of the 
Island called Prince of Wales Island, which Point lies in the par- 
allel of 54 degrees 40 minutes North latitude and between the 
131st and the 133rd degree of West longitude (Meridian of Green- 
wich), the said line shall ascend to the North along the channel 
called Portland Channel as far as the Point of the Continent 
where it strikes the 56th degree of North Latitude. (Convention 
between Great Britain and Russia, St. Petersburg, Feb. 1/16, 
1825. 12 Brit. & For. State Papers, p. 38.) 



TKEATIES AND CONVENTIONS 59 

In commenting on this article, Professor J. Guillermo 
Guerra in his study, " Les Eaux Territoriales dans les 
Detroits," published in Revue Generale de Droit Inter- 
national Public, Vol. 31, pp. 232-254, writes as follows : 

Ce traite fut ensuite applique dans les rapports de la Grande- 
Bretagne et des Etats-Unis, qui avaient succede aux droits de la 
Russie sur le territoire de l'Alaska. S'il n'a pas indique en 
ternies expres la ligne qui devait etre suivie dans la demarcation 
des souverainetes sur le canal de Portland, d'une etendue de 60 
milles, les deux gouvernements l'ont du moins interprets en ce 
sens que c'est la ligne mediane qu'il fault prendre en consideration. 

By Article III of the treaty of Nanking, 1842, between 
Great Britain and China (Treaties between China and 
Foreign States, published by order of Inspector General 
of Customs, p. 351) it was provided that China should 
cede Hong Kong to Great Britain. In commenting upon 
Article III of this treaty Professor Guerra says : 

En 1842 par le traite de Nankin (Art 3), la Grande-Bretagne 
acquit la souverainetG sur la petite ile de Hongkong, situee a 
l'entree de l'estuaire de Canton. Cette petite ile est separee du 
continent chinois par la passe de Laimun dont la largeur est si 
reduite qu'elle n'atteint pas un mille. Dans le traite de cession, 
rien ne fut stipule au sujet de la juridiction anglaise ou de la 
juridiction chinoise sur les eaux du petit detroit qui separait 
ainsi les deux souverainetes. Mair, d'apres le temoignage de 
Sir Travers Twiss, d'Oppenheim et d'autres auteurs encore, les 
deux puissances ont en fait exerce leur juridiction separement 
jusqu'au fil moyen des eaux. 

The treaty of June 15, 1846, Great Britain and the 
United States provides : 

Article I. From the point on the forty-ninth parallel of north 
latitude, where the boundary laid down in existing treaties and 
conventions between the United States and Great Britain termi- 
nates, the line of boundary between the territories of the United 
States and those of her Britannic Majesty shall be continued 
westward along the said forty-ninth parallel of north latitude to 
the middle of the channel which separates the continent from 
Vancouver's Island, and thence southerly through the middle of 
the said channel, and of Fuca's Straits, to the Pacific Ocean: — 
Provided, however, That the navigation of the whole of the said 
138120—32 5 



60 NEUTRALITY AND TERRITORIAL, WATERS 

channel and straits, south of the forty-ninth parallel of north 
latitude, shall remain free and open to both parties. (9 U. S. 
Stat. 869.) 

In commenting on the above article, Hall, Interna- 
tional Law, Eighth Edition, edited by Pearce Higgins, 
writes as follows: 

By the treaty of Washington of 1846 it was stipulated that 
the boundary between the United States and British North 
America should follow the forty-ninth parallel of latitude to the 
middle of the strait separating Vancouver's Island from the 
continent and from there should run down the middle of the 
Strait of Fuca to the Pacific. Disputes involving the title to 
various islands having arisen, the boundary question at issue 
between the two nations was submitted to the arbitration of 
the German Emperor and in 1873 a protocol was signed at 
Washington for the purpose of marking out the frontier in ac- 
cordance with his arbitral decision. Under this protocol, the 
boundary after passing the islands which had given rise to the 
dispute is carried across a space of water 35 miles long by 20 
miles broad, and is then continued for 50 miles down the middle 
of a strait 15 miles broad until it touches the Pacific Ocean mid- 
way between Bonilla Point on Vancouver's Island and Tatooch 
Island lighthouse on the American shore, the waterway being 
there 10% miles in width (p. 195). 

The treaty of Copenhagen, March H, 1857. — " Treaty 
between Great Britain, Austria, Belgium, France, Han- 
over, Mecklenburg-Schwerin, Oldenburg, Netherlands, 
Prussia, Russia, Sweden and Norway, and the Hanse 
Towns, on the one part, and Denmark, on the other 
part, for the Redemption of the Sound Dues." 

Article I. De ne prelever aucun droit de douane, de tonnage, 
de balisage * * * sur les navires qui se rendront de la 
Mer du Nord dans la Baltique, ou vice versa, en passant par les 
Belts ou le Sund, soit qu'ils se bornent k traverser les eaux 
danoises * * *. (47 Brit, and For. State Papers, 1856-1857, 
P. 24.) 

A declaration to the following effect between Great 
Britain and France was signed at London, April 3, 1904, 
respecting Egypt and Morocco : 



TREATIES AND CONVENTIONS 61 

Article VII. In order to secure the free passage of the Straits 
of Gibraltar, the two Governments agree not to permit the erec- 
tion of any fortifications or strategic works on that portion 
of the coast of Morocco comprised between, but not including, 
Melilla and the heights which command the right bank of the 
River Sebou. (97 Brit, and For. State Papers, 1903-1904, p. 40.) 

A convention of April 11, 1908, between Great Britain 
and the United States relating to the international 
boundary provided: 

The remaining portion of the line, lying between the two 
above-described sections, and upon the location of which the 
said former Commissioners did not agree, shall pass through 
the center of the Lubec Narrows Channel between Campo Bello 
Island and the mainland. (35 U. S. Stat. 2003.) 

A further treaty, May 21, 1910, between Great Brit- 
ain and the United States concerning the boundary line 
in Passamaquoddy Bay provided: 

Now, Therefore, upon the evidence and arguments so pre- 
sented, and after taking into consideration all actions of the 
respective Governments and of their representatives authorized 
in that behalf and of the local governments on either side of 
the line, whether prior or subsequent to such treaties and award, 
tending to aid in the interpretation thereof, the High Contracting 
Parties hereby agree that the location of the international bound- 
ary line between the United States and the Dominion of Canada 
from a point in Passamaquoddy Bay accurately defined in the 
Treaty between the United States and Great Britain of April 11, 
1908, as lying between Treat Island and Friar Head, and extend- 
ing thence through Passamaquoddy Bay and to the middle of 
Grand Manan Channel, shall run in a series of seven connected 
straight lines for the distances and in the directions as follows. 
(36 U. S. Stat. 2477.) 

The Bosphorus and Dardanelles, 1920-1923. — The Bos- 
phorus and Dardanelles have from early times been the 
scene of controversies. Regulation of the use of the 
Straits has been the subject of many diplomatic discus- 
sions. For a long time the use of the Straits was gov- 
erned by the treaties of 1856 and 1871 by which vessels 
of war were in general excluded. 



62 NEUTRALITY AND TERRITORIAL, WATERS 

The postwar negotiations resulted in the unratified 
treaty of Sevres, August 10, 1920, in which among the 
articles relating to the Straits were the following: 

Article 37. The navigation of the Straits, including the Darda- 
nelles, the Sea of Marmora and the Bosphorus, shall in future 
be open, both in peace and war, to every vessel of commerce or 
of war and to military and commercial aircraft, without distinc- 
tion of flag. 

These waters shall not be subject to blockade, nor shall any 
belligerent right be exercised nor any act of hostility be com- 
mitted within them, unless in pursuance of a decision of the 
Council of the League of Nations. 

Article 38. The Turkish Government recognizes that it is nec- 
essary to take further measures to ensure the freedom of navi- 
gation provided for in Article 37, and accordingly delegates, so 
far as it is concerned, to a Commission to be called the Com- 
mission of the Straits, and hereinafter referred to as the Commis- 
sion, the control of the waters specified in Article 39. 

The Greek Government, so far as it is concerned, delegates to 
the Commission the same powers and undertakes to give it in all 
respects the same facilities. 

Such control shall be exercised in the name of the Turkish and 
Greek Governments respectively, and in the manner provided in 
this Section. 

Article 39. The authority of the Commission will extend to all 
the waters between the Mediterranean mouth of the Dardanelles 
and the Black Sea mouth of the Bosphorus, and to the waters 
within 3 miles of each of these mouths. 

This authority may be exercised on shore to such extent as may 
be necessary for the execution of the provisions of this Section. 

The treaty of Lausanne, July 24, 1923, which became 

operative provided : 

Article 23. The high contracting parties are agreed to recognize 
and declare the principle of freedom of transit and of navigation, 
by sea and by air, in time of peace as in time of war, in the 
strait of the Dardanelles, the Sea of Marmora and. the Bosphorus, 
as prescribed in the separate convention signed this day, regarding 
the regime of the Straits. This convention will have the same 
force and effect in so far as the present high contracting parties 
are concerned as if it formed part of the present treaty. (28 L. 
N. T. S., p. 13 ; see also 18 Amer. Journal International Law, Sup- 
plement, 1924, p. 11.) 



TKEATY OF LAUSANNE, 19 23 63 

In the convention relating to the regime of the Straits 
also signed July 24, 1923, it was provided in regard to 
(2) warships, including fleet auxiliaries, troopships, 
aircraft carriers, and military aircraft : 

( o\ ♦ * * 

(b) In time of war, Turkey being neutral. 

Complete freedom of passage by day and by night under any 
flag, without any formalities, or tax, or charge whatever, under 
the same limitations as in paragraph 2 (a). 

However, these limitations will not be applicable to any bel- 
ligerent Power to the prejudice of its belligerent rights in the 
Black Sea. 

The rights and duties of Turkey as a neutral Power cannot 
authorize her to take any measures liable to interfere with navi- 
gation through the Straits, the waters of which, and the air 
above which, must remain entirely free in time of war, Turkey 
being neutral, just as in time of peace. 

Warships and military aircraft of belligerents will be forbid- 
den to make any capture, to exercise the right of visit and search, 
or to carry out any other hostile act in the Straits. 

As regards revictualling and carrying out repairs, war vessels 
will be subject to the terms of the Thirteenth Hague Conven- 
tion of 1907, dealing with maritime neutrality. 

Military aircraft will receive in the Straits similar treatment 
to that accorded under the Thirteenth Hague Convention of 1907 
to warships, pending the conclusion of an international convention 
establishing the rules of neutrality for aircraft. 

(c) In time of war, Turkey being belligerent. 

Complete freedom of passage for neutral warships, without any 
formalities, or tax, or charge whatever, but under the same limi- 
tations as in paragraph 2 (a). 

The measures taken by Turkey to prevent enemy ships and 
aircraft from using the Straits are not to be of such a nature as 
to prevent the free passage of neutral ships and aircraft, and 
Turkey agrees to provide the said ship and aircraft with either 
the necessary instructions or pilots for the above purpose. 

Neutral military aircraft will make the passage of the Straits 
at their own risk and peril, and will submit to investigation as to 
their character. For this purpose aircraft are to alight on the 
ground or on the sea in such areas as are specified and prepared 
for this purpose by Turkey. 

(3) (a) The passage of the Straits by submarines of Powers at 
peace with Turkey must be made on the surface. (28 L. N. T. S., 



64 NEUTRALITY AND TERRITORIAL WATERS 

p. 115 ; see also 18 Arner. Journal International Law, Supplement, 
1924, p. 56.) 

The proposed treaty with United States, signed Au- 
gust 6, 1923, would have covered many of the provisions 
of the treaty of Lausanne. 

Islands and archipelagoes. — The Harvard Law School 
Research in International Law also considered maritime 
jurisdiction around islands and in its draft on terri- 
torial waters drew up the following: 

Akticle 7 

The marginal sea around an island, or around land exposed 
only at some stage of the tide, is measured outward 3 miles there- 
from in the same manner as from the mainland. 

Comment. — With some additions and omissions the 
comment on the article follows : 

The practice is nearly uniform in beginning to measure 
the marginal sea from low water mark along the coasts 
of a mainland. The only difficulty arises in connection 
with rocks, islands, reefs, etc., lying off the coast. If an 
island lies not more than 6 miles from the coast, the 
marginal sea should be extended to a distance of 3 
miles from the island. Similarly in any situation where 
islands are within 6 miles of the coast or of each other, 
marginal waters will mingle and form one extended 
zone. No different rule should be established for groups 
of islands or archipelagoes, except that if the outer 
fringe of islands are sufficiently close to form one belt, 
any wider expanse of water within such belt should be 
considered territorial. If all the islands of a group 
belong to one state and the separating distance is 6 
and a fraction miles, thus leaving a narrow passage be- 
tween marginal seas, it would seem equitable to permit 
an extension, but there can not be said to be any estab- 
lished rule on the point. It might be possible to agree 
that where the intervening passage is less than 1 mile 
(or less than one-half mile) in width, the littoral State 
may consider such waters as part of its marginal sea. 



ATTITUDE OF UNITED STATES, 18 86 65 

In the above connection, any rock, coral, mud, sand, 
or other natural solid formation which is exposed above 
the surface of the water at low tide, should be considered 
an " island." If a fringe of exposed rocks is situated 
at a distance of say 10 miles from the coast, there seems 
to be no established basis for considering all waters be- 
tween the rocks and the mainland as territorial waters. 
Special consideration should, however, be accorded to 
claims established and maintained over a long period 
of time. Such may be the Scandinavian claims and 
those of Australia. 

Attitude of the United States. — Mr. Bayard, Secre- 
tary of State, in a letter to Mr. Manning, Secretary of 
the Treasury, May 28, 1886, referred to the coastal juris- 
diction of the United States: 

We may, therefore, regard it as settled * * * that so far 
as concerns the eastern coast of North America, the position of 
this Department has uniformly been that the sovereignty of 
the shore does not, so far as territorial authority is concerned, 
extend beyond 3 miles from low-water mark, and that the sea- 
ward boundary of this zone of territorial waters follows the 
coast of the mainland, extending where there are islands so 
as to place round such islands the same belt. This necessarily 
excludes the position that the seaward boundary is to be drawn 
from headland to headland, and makes it follow closely, at a 
distance of 3 miles, the boundary of the shore of the continent 
or of adjacent islands belonging to the continental sovereign. 
(I Wharton, Digest of International Law, p. 107.) 

/Spitsbergen. — Special provision was made in regard to 
Spitsbergen by treaty on February 9, 1920. 

In article 1 of this treaty, the powers recognized " the 
full and absolute sovereignty of Norway over the Archi- 
pelago of Spitsbergen," etc., " between 10° and 35° longi- 
tude East of Greenwich and between 74° and 81° lati- 
tude North." In article 2 it is provided that — 

ships and nationals of all the High Contracting Parties shall 
enjoy equally the rights of fishing and hunting in the territories 
specified in Article 1 and in their territorial waters. 

Norway shall be free to maintain, take or decree suitable meas- 
ures to insure the preservation and, if necessary, the re-constitu- 



66 NEUTRALITY AND TERRITORIAL, WATERS 

tion of the fauna and flora of the said regions, and their terri- 
torial waters. (43 U. S. Stat. 1892.) 

Legislation and decrees. — There has been from time 
to time legislation in regard to lands along the coast. 
A French law of 1912 provides : 

Article 2. Pour l'application des regies de la convention XIII 
de la Haye en date du 18 octobre 1907 : 

" Les eaux territoriales frangaises s'etendent en deg& d'une 
limite qui est fixee a 10 milles marins au large de la laisse de la 
basse mer le long de toutes les cotes et des bancs decouvrants qui 
en dependent, ainsi que autour du balisage fixe qui determine la 
limite des bancs non decouvrants." (Journal officiel de la Re- 
publique Francaise, 1912, Sept.-Oct, p. 8976.) 

Russia in pre-war days foresaw certain exceptional 
conditions on its icy coast. 

1. Where the extent of the seashore radius is not defined by 
special international enactments or treaties, the present rules 
cover the coastal sea to a distance of 3 geographical miles 
(equals 12.02 marine miles equals 20.87 versts), counting from 
the line of lowest ebb-tide or from the extremity of the coastal 
standing ice. (Russian law No. 1066 of May 29, 1911; 1912 U. S. 
For. ReL, p. 1303.) 

Uruguay in providing for neutrality proclaimed: 

In accordance with the principle established by the treaty of 
Montevideo in 1889 (Penal Law, Article 12), and with the princi- 
ples generally accepted in these matters, the waters will be con- 
sidered as territorial waters, to a distance of 5 miles from the 
coast of the mainland and islands, from the visible outlying 
shoals, and the fixed marks which determine the limit of the 
banks not visible." (Neutrality Proclamation of August 7, 1914, 
art. 2; 1916 Naval War College, International Law Documents, 
pp. 106-107.) 

Differences of opinion. — Even on the matter of the 
measurement of territorial sea along the coast there re- 
mains difference of opinions. In regard to other mari- 
time areas there is even wider variation of opinion. For 
the Conference for the Codification of International 
Law certain bases of discussion were drawn up by the 
preparatory committee in 1929. One of these was Basis 
of Discussion No. 3: 



ATTITUDE OF STATES, 1930 67 

The breadth of the territorial waters under the sovereignty of 
the coastal State is 3 nautical miles. 

The conference met at The Hague in 1930 and after 
discussion, a provisional expression of opinion as to the 
extent of territorial sea was proposed and, with the dis- 
tinct understanding that the expression of opinion should 
not be regarded as final, the following statements were 
made : 

Mr. Lansdown (Union of South Africa). — I beg to express my 
view in favour of Basis No. 3 as printed, that the breadth of ter- 
ritorial waters should be 3 nautical miles. 

M. Schucking (Germany). — The German Delegation is in fa- 
vour of the 3-mile rule, together with the existence of an adjacent 
zone, in the hope that the acceptance of the principle of the 
adjacent zone may facilitate the acceptance of the 3-mile rule by 
other countries. 

Mr. Miller (U. S. A.). — I read one sentence which is contained 
in various existing treaties of the United States : 

" The High Contracting Parties declare that it is their firm 
intention to uphold the principle that 3 marine miles extending 
from the coast line outwards and measured from low water mark 
constitute the proper limits of territorial waters." 

M. de Ruelle (Belgium). — We accept the 3-mile rule, together 
with a zone of adjacent waters. 

Sir Maurice Gwyer (Great Britain). — The British Delegation 
firmly support Basis No. 3 — that is to say, a territorial belt 
of 3 miles without the exercise, as of right, of any powers by 
the Coastal State in the contiguous zone, and they do that on 
three grounds, which I will express in as few words as I can: 
First, because in their view the 3-mile limit is a rule of inter- 
national law already existing adopted by maritime nations which 
possess nearly 80 per cent of the effective tonnage of the world ; 
secondly, because we have already, in this Committee, adopted 
the principle of sovereignty over territorial waters; and thirdly, 
because the 3-mile limit is the limit which is most in favour of 
freedom of navigation. 

I ought to add that in this matter I speak also on behalf of 
His Majesty's Government in the Commonwealth of Australia. 

Mr. Pearson (Canada). — The Government of Canada is in fa- 
vour of the 3-mile territorial limit for all nations and for all 
purposes. 



68 NEUTRALITY AND TERRITORIAL WATERS 

M. Marchant (Chile). — The Chilean Delegation will accept 6 
miles as the breadth of territorial waters without an adjacent 
zone, or 3 miles with an adjacent zone. 

M. W. Hsieh (China). — The Chinese Delegation accepts the 
Basis of Discussion No. 3 in principle. 

M. Arango (Colombia). — I am in favour of the 6-mile limit. 

M. de Armenteros (Cuba). — The Cuban Delegation is against 
Basis No. 3. I pronounce myself in favour of 6 miles with an 
adjacent zone. 

M. Lorck (Denmark). — We are in principle in favour of Basis 
of Discussion No. 3, but as the rules concerning bays are very 
unsettled and the question of bays is of great importance to Den- 
mark, it is impossible for me to give a definite decision at the 
moment. 

Abel Hamid Badaoui Pacha (Egypt). — We are in favour of 3 
miles territorial water, together with an adjacent zone. 

M. Angulo (Spain). — In accordance with their amendment, the 
Spanish Delegation is in favour of 6 miles territorial water, 
together with an adjacent zone. 

M. Varma (Estonia). — The Estonian Delegation wishes for the 
3 miles territorial water, and an adjacent zone. 

M. Erich (Finland). — For reasons of solidarity with its neigh- 
bours the Scandinavian States, the Finnish Delegation favours 
a zone of 4 miles for territorial waters, provided an adjacent 
zone of sufficient width is granted to her at the same time. In 
the latter case the Finnish Delegation could also accept a 3-mile 
zone, but primarily she favours a 4-mile zone. If, contrary to 
expectations, the majority of the Commission did not pronounce 
in favour of an adjacent zone, the Finnish Delegation reserves 
the right to come back to this question and to take a different 
attitude regarding the depth of territorial waters. 

M. Gidel (France). — France has no objection to the acceptance 
of the 3-mile rule, provided that there is a belt of adjacent 
waters, and subject- to the rules which may be agreed to in 
regard to the method of determining the datum line of the 
territorial belt. 

M. Giannini (Italy). — May I ask my French colleague the 
meaning of the reservation he has made. 

M. Gidel (France). — I will explain myself more fully on a 
subsequent occasion as I would not wish to prolong this proc- 
ess of voting. I thought however that I had made my mean- 
ing sufficiently clear; we desire an adjacent zone and we accept 
the 3-mile limit provided that a solution satisfactory to us is 
arrived at with regard to the datum line of the territorial belt. 



ATTITUDE OF STATES, 19 3 69 

M. Spiropoulos (Greece). — The Greek Delegation has already 
stated that they accept the 3-mile rule. They would even be 
prepared to accept 2 miles in the interests of the freedom of 
navigation if all States were prepared to accept it. As we 
have already accepted the 3-mile limit and the principle of 
sovereignty, the Greek Delegation considers that no adjacent 
zone is necessary. However, as there are some countries which 
desire a greater extent than 3 miles of territorial waters, they 
would even be prepared to accept an adjacent zone, particu- 
larly as Greece, according to the legislation at present in force, 
already possesses one. 

Sir Ewart Greaves (India). — The Government of India ac- 
cepts Basis No. 3. 

Mr. Charles Green (Irish Free State). — The Government of 
the Irish Free State accepts Basis No. 3 as printed, but recog- 
nises that, in certain countries and for certain purposes, there 
are requirements of the nature set out in Basis No. 5. 

M. Bjornssen (Iceland). — The Icelandic Delegation accepts 
4 miles. 

M. Giannini (Italy). — Six miles. 

M. Mushakoji (Japan). — The Japanese Delegation accepts the 
3-mile limit without an adjacent zone. 

M. Albat (Latvia). — The Latvian Delegation accepts 6 miles 
with an adjacent zone. 

M. Raestad (Norway). — As there is no binding rule of in- 
ternational law on this question, the Norwegian Government 
considers that it is necessary to take into consideration the re- 
quirements of the different countries. The Delegation pro- 
nounces in favour of the limit of 4 miles ; that rule is older than 
the 3-mile rule. 

With regard to other countries, the Norweigian Government 
would be prepared to recognize a greater width of territorial 
waters provided, as is stated in the Norwegian Government's 
printed reply,, that the demand was based on continuous and 
ancient usage. 

With regard to adjacent waters, they must be limited by 
the needs regarding customs and security. 

Admiral Surie (Netherlands). — The Netherlands Delegation 
cannot give an opinion on the question of adjacent waters until 
it is informed what rights will be involved. It is, however, 
prepared to accept Basis No. 3 as regards the breadth of the 
territorial waters, which it accepts at three miles. 

It bases its decision, first on the necessity of safeguarding 
the interest of commercial navigation on the high seas, and 
secondly, on the consideration of not placing any too heavy 
obligations on the Coastal State. 



70 NEUTRALITY AND TERRITORIAL WATERS 

M. Sepahbodi (Persia). — The Persian Delegation accepts the 
6-mile rule with an adjacent zone. 

M. Makowski (Poland). — The Polish Delegation is in favour of 
a 3-mile breadth of territorial waters together with an adjacent 
zone sufficiently wide to enable the Coastal State to protect its 
legitimate interests. 

M. de Magalhaes (Portugal). — The Portuguese Delegation has 
already said that it desires a territorial belt of 12 miles in width, 
but it is prepared to accept a belt of 6 miles provided there is an 
adjacent zone also of 6 miles in width. 

The reason for the claim of a territorial belt of 6 miles is, 
firstly, because of the special position of Portugal on the conti- 
nental plateau and its possession of fisheries which are vital to 
its interests, and secondly, for a general reason ; that is to say. 
that the 3-mile limit is inadequate, as is proved by the claims for 
adjacent waters which have been put forward by many other 
countries, some of them demanding a great width for the adja- 
cent zone. 

They therefore accept the 6-mile belt together with adjacent 
waters, and in those adjacent waters they demand to be accorded 
police rights over fisheries such as have been recommended in all 
recent fishery congresses. 

M. Meitani (Roumania). — The Roumanian Delegation accepts 
a territorial belt of 6 miles and reserves its attitude on the ques- 
tion of adjacent waters. 

M. Sjoborg (Sweden). — The Swedish Delegation desires a ter- 
ritorial belt of 4 miles in width, but recognises as legitimate the 
other historic belts at present in force in a certain number of 
countries, that is, for example, 3 and 6 mile zones. 

M. Sitensky (Czechoslovakia). — The Czechoslovak Delegation 
desires the greatest possible freedom of navigation, but not having 
any coast line they consider that they should abstain from pro- 
posing a definite extent for the zone of territorial waters. 

Chinasi Bey (Turkey). — The Turkish Delegation desires a 6- 
mile belt of territorial waters with an adjacent zone. 

M. Buero (Uruguay). — The Uruguayan Delegation desires a 
territorial belt of 6 miles and reserves its attitude on the question 
of adjacent waters. 

M. Novakovitch (Yugoslavia). — The Yugoslav Delegation de- 
sires a territorial belt of 6 miles and reserves its attitude on the 
question of adjacent waters. 

M. de Vianna-Kelsch (Brazil). — The Brazilian Delegation ac- 
cepts a territorial belt of 6 miles for all purposes. 

M. Egoriew (U. S. S. R.). — If one takes into consideration the 
state of positive law at the present time, as it can be discovered 



THE " FAGERNES " 71 

in the legislation of the different States through treaties and 
diplomatic correspondence, it is necessary to recognise the great 
diversity of view which exists in the waters called territorial and 
adjacent. The exercise of such rights for all purposes or for cer- 
tain purposes is admitted sometimes within the limit of 3, some- 
times 4, 6, 10 or 12 miles. 

The reasons, both historical and theoretical, invoked by some 
States and disputed by others, cannot be put into opposition to 
these facts and the rule or actual necessity for States to ensure 
their needs, particularly in waters along the coast which are 
not used for international navigation. This aspect which has 
been already noted in the literature on the subject, as well as 
in debates, in this Commission, cannot be overlooked. (League 
of Nations, C. 230, M. 117, 1930, V, Conf. C. D. I. 19 (2), p. 15.) 

When the differences of opinion upon the fundamental 
question of coastal jurisdiction are diverse, it is evident 
that states may find grounds for demanding that their 
security be not endangered by too strict interpretation 
of the widely accepted rule of the 3-mile limit of mari- 
time jurisdiction. 

The " Fagernes." — The case of the Fagernes arose 
from a collision between the British owned steamship 
Cornish Coast and the Italian owned Fagernes on 
March 17, 1926. The collision took place in the Bristol 
Channel at a point " 10 or 121/^ miles distance from the 
English coast and 9% or 7% miles from the Welsh 
coast," according to the respective cases, the distance 
across the channel being about 20 sea miles. The question 
arose as to whether the collision took place within Brit- 
ish jurisdiction. When the case came before the court 
in 1926, it was said of the place of collision, "If that 
spot is within the jurisdiction it is immaterial whether 
it is in England or in Wales. It is equally within the 
jurisdiction of the High Court." (1926, Probate Divorce 
and Admiralty, p. 185.) The point at which the colli- 
sion occurred was held by Mr. Justice Hill to be within 
British jurisdiction. Later this case came before the 
judges of the Court of Appeal. For this court the 



72 NEUTRALITY AND TERRITORIAL WATERS 

Attorney General was asked whether the Crown claimed 
that the place of collision was " within the realm of 
England." 

The Attorney General replied that the Secretary of State for 
Home Affairs instructed him to say that " the spot where this 
collision is alleged to have occurred is not within the limits to 
which the territorial sovereignty of His Majesty extends." (1927, 
P., p. 319.) 

In the opinion of Bankes, L. J., is mentioned the ap- 
pearance of the Attorney General and it is stated that — 

he gave the Court an exhaustive statement of the opinions of 
jurists and text writers from very early times upon this much 
discussed question of the territorial jurisdiction over creeks, 
bays, etc. ; and he referred the Court to all the relevant authori- 
ties, with the view of inducing the Court not to lay down any 
rule on the question, but to content themselves merely by saying 
that there was no authority for holding that the place of this 
collision was within the jurisdiction. The question of what is 
within the realm of England being one of the matters of which 
the Court takes judicial notice, we thought it right to ask the 
Attorney General whether the Crown did or did not claim that 
particular part of the Bristol Channel where this collision oc- 
curred, as being within the territorial jurisdiction of the King; 
and he replied that the Crown did not. This information was 
given at the instance of the Court, and for the information of 
the Court. Given under such circumstances, and on such a sub- 
ject, it does not in my opinion necessarily bind the Court in the 
sense that it is under an obligation to accept it. 

Having regard, however, to the position created by the infor- 
mation given to the Court by the Attorney General, to absence of 
authority and to the general trend of the more recent opinion 
on the question of limiting the width of the fauces terrae to which 
the rule of territorial jurisdiction should apply, I think the 
Court ought to be guided by the information given to the Court 
by the Attorney General, to the extent of saying that they do not 
consider that there is sufficient authority for supporting the judg- 
ment of Hill, J., and that the order appealed from must be set 
aside and the decision of the learned judge reversed with costs 
here and below. I confine my judgment to the particular part 
of the Channel where this collision occurred and to a case where 
no evidence of any effective occupation is given. (Ibid., p. 323.) 



AERIAL RULES 73 

Some members of the court, however, were of the opin- 
ion if a decision had been rendered without the statements 
of the Attorney General, it would have followed the 
opinion of Hill, J., from which appeal had been taken. 
[Development of aerial rules. — It is not the intention 
as evidenced by aerial rules at present accepted to grant 
to aircraft in time of war the same freedom of move- 
ment as that granted naval vessels, but rather to restrict 
the freedom of aircraft in neutral jurisdiction to a degree 
more nearly approximating that of military land mate- 
rial and personnel. A compromise has been generally 
accepted which permits military aircraft to enter neutral 
jurisdiction when upon and remaining on board vessels 
of war if vessels of war themselves are permitted to 
enter. 

Previous to 1914 and even during the early days of 
the World War there had been proposals to limit bellig- 
erent activities to land and sea and to prohibit by inter- 
national agreement in whole or in part the use of aerial 
space for warfare. This was to a degree accomplished by 
The Hague Convention of 1899 which for a period of 
five years prohibited the launching of projectiles and ex- 
plosives from aircraft. While by strict interpretation 
the terms of this convention ceased to be binding on the 
belligerents during the Russo-Japanese War yet the two 
belligerents mutually observed its provisions till the end 
of the war. Before 1907 it became clear that the devel- 
opment of aerial navigation had made old rules obso- 
lete. No formal and comprehensive rules existed in 1914 
and the practice of the World War showed the need of 
some regulations. 

Submarines in 1916. — There had been in 1916 numer- 
ous rumors in regard to contemplated visits of sub- 
marines to American waters. The British Government 
in a note of July 3, 1916, maintained that it was unlikely 
that such a visit would be for any other purpose than 
for conducting hostile operations, and set forth its ideas 



74 NEUTRALITY AND TERRITORIAL WATERS 

as to neutral duties. The Government further stated 
that — 

The enemy submarines have been endeavoring for nearly 18 
months to prey upon the Allied and neutral commerce, and 
throughout that period enemy governments have never claimed 
that their submarines were entitled to obtain supplies from 
neutral ports. This must have been due to the fact that they 
thought they would be met with a refusal and that hospitality 
could not be claimed as of right. The difficulty of knowing 
the movements or controlling the subsequent action of the sub- 
marines renders it impossible for the neutral to guard against 
any breaches of neutrality after the submarine has left port and 
justifies the neutral in drawing a distinction between surface 
ships and submarines. The latter, it is thought, should be 
treated on the same footing as seaplanes or other aircraft 
and should not be allowed to enter neutral ports at all. This 
is the rule prescribed during the present war by Norway and 
Sweden. Another point of distinction between surface ships 
and submarines should be borne in mind. A surface vessel de- 
manding the hospitality of a neutral port runs certain inevitable 
risks ; its whereabouts become known and an enemy cruiser can 
await its departure from port. This and similar facts put a 
check on the above by belligerent surface ships of neutral hos- 
pitality. No such disadvantages limit the use to which the 
Germans might put neutral ports as bases of supplies for 
submarine raiders. 

For these reasons, in the opinion of His Majesty's Government, 
if any enemy submarine attempts to enter a neutral port, permis- 
sion should be refused by the authorities. If the submarine 
enters it should be interned unless it has been driven into port 
by necessity. In the latter case it should be allowed to depart 
as soon as necessity is at an end. In no circumstances should 
it be allowed to obtain supplies. 

If a submarine should enter a neutral port flying the mercan- 
tile flag His Majesty's Government are of opinion that it 
is the duty of the neutral authorities concerned to enquire closely 
into its right to fly that flag, to inspect the vessel thoroughly 
and, in the event of torpedoes, torpedo tubes or guns being found 
on board, to refuse to recognise it as a merchant ship. 

In bringing the above to your serious consideration I have the 
honor to express the confident hope that the United States Gov- 
ernment will feel able to agree in the views of His Majesty's 
Government and to treat submarine vessels of belligerent powers 



the "deutschland" 75 

visiting United States ports accordingly. (1916, Foreign Rela- 
tions, Supplement, p. 766.) 

When the submarine Deutschland arrived in Balti- 
more on July 9, 1916, with a cargo of dyestuffs, it was 
advisedly treated by the United States as a merchant 
vessel. The British Government pointed out the dan- 
gers of this action. 

British position. — By a telegram of the British Sec- 
retary of State for Foreign Affairs to the British am- 
bassador at Washington, July 18, 1916, the British po- 
sition was further set forth in consequence of the treat- 
ment of the Deutschland. 

From point of view of sea power so much depends both now 
and in the future upon the way in which submarines are to 
be treated in international law that it seems impossible to 
leave the controversy at the stage where the United States 
Government are disposed to let it rest. 

The first point to be established is that international law ought 
not to transfer without modification to submarines, rules and 
regulations which work fairly well as regards surface vessels. 
If this be once conceded we may hope to have an international 
code drawn up which might meet conditions of naval warfare. 

It is argued that German commercial submarine carries cargo 
but no armament and that it should therefore be treated exactly 
like any other ship which carries cargo but not armament. 

On this it must be observed that most formidable part of sub- 
marine, namely, its submersibility, is one of its inseparable at- 
tributes. Whatever else it carries and for whatever purpose it 
may nominally have been designed, it cannot divest itself of its 
most dangerous characteristic. If a belligerent were to use for 
mercantile purposes a vessel which in every respect was designed 
and armoured as a battle cruiser, but which carried no guns, 
everybody would say : " This is only colourably a merchant ship ; 
nine-tenths of work required to convert her into a completely 
equipped ship of war of most formidable type has already been 
put into her and cannot be removed. Clearly it is as ship of war 
that she should be treated." 

So it is with the submarine. It is not torpedoes and torpedo 

tubes which make her what she is. These are weapons which 

may equally be possessed by a trawler. What really puts her in 

a class apart and makes it necessary to treat her under special 

138120—32 6 



76 NEUTRALITY AND TERRITORIAL WATERS 

rules is the indefeasible quality which she possesses of travelling 
under water. She bears no real resemblance to a liner which in 
time of war may have a few guns put into her and be turned 
into an auxiliary cruiser but can never be made a powerful fight- 
ing unit. The submersible cargo boat, for all her peaceful ap- 
pearance, possesses and must always possess qualities which 
would enable her at very short notice to be converted into a 
fighting vessel of most formidable kind ; her case is therefore 
exceptional and calls for exceptional treatment. 

If this be denied it would seem to follow that unarmed sub- 
marines might be constructed in any number in neutral countries 
and then be armed by belligerent purchaser with necessary 
torpedo tubes. To take an example, Great Britain would then, 
if Germany and the United States were at war, be compelled to 
supply Germany with submarines to be subsequently used in 
destroying Anglo-American trade. (Ibid., p. 769.) 

Allied attitude on submarines, 1916. — Identic memo- 
randa were sent to the Department of State of the 
United States by the French, British, Russian, Jap- 
anese, Italian, and Portuguese Governments in August, 
1916, as follows : 

In view of the development of submarine navigation, and by 
reason' of the acts which, in present circumstances, may unfor- 
tunately be expected from enemy submarines, the Allied Gov- 
ernments consider it necessary, in order not only to safeguard 
their belligerent rights and the liberty of commercial naviga- 
tion, but to avoid risks of dispute, to urge neutral governments 
to take effective measures, if they have not already done so, 
with a view to preventing belligerent submarine vessels, what- 
ever the purpose to which they are put, from making use of 
neutral waters, roadsteads, and ports. 

In the case of submarine vessels, the application of the prin- 
ciples of the law of nations is affected by special and novel 
conditions ; first, by the fact that these vessels can navigate 
and remain at sea submerged, and can thus escape all control 
and observation ; and second, by the fact that it is impossible 
to . identify them and to establish their national character, 
whether neutral or belligerent, combatant or noncombatant, and 
to remove the capacity for harm inherent in the nature of such 
vessels. 

It may further be said that any place which provides a sub- 
marine warship far from its base with opportunity for rest and 
replenishment of its supplies thereby furnishes such an addi- 



ATTITUDE ON SUBMARINES, 1916 77 

tion to its powers that the place becomes in fact, through the 
advantages which it gives, a base of naval operations. 

In view of the state of affairs thus existing, the Allied Gov- 
ernments are of opinion that — 

Submarine vessels should be excluded from the benefit of the 
rules hitherto recognized by the law of nations regarding the 
admission of vessels of war or merchant vessels into neutral 
waters, roadsteads, or ports, and their sojourn in them. 

Any belligerent submarine entering a neutral port should be 
detained there. 

The Allied Governments take this opportunity to point out to 
neutral powers the grave danger incurred by neutral submarines 
in navigating regions frequented by belligerent submarines. 
(1916, Foreign Relations, Supplement, p. 769.) 

Reply of United States. — After reviewing the memo- 
randum of the Allied Powers, the Department of State 
said on August 31, 1916, that — 

In the opinion of the Government of the United States the 
Allied powers have not set forth any circumstances, nor is the 
Government of the United States at present aware of any cir- 
cumstances, concerning the use of war or merchant submarines 
which would render the existing rules of international law in- 
applicable to them. In view of this fact and of the notice and 
warning of the Allied powers announced in their memoranda 
under acknowledgment, it is incumbent upon the Government of 
the United States to notify the Governments of France, Great 
Britain, Russia, and Japan that, so far as the treatment of either 
war or merchant submarines in American waters is concerned, 
the Government of the United States reserves its liberty of action 
in all respects and will treat such vessels as, in its opinion, be- 
comes the action of a power which may be said to have taken 
the first steps toward establishing the principles of neutrality and 
which for over a century has maintained those principles in the 
traditional spirit and with the high sense of impartiality in 
which they were conceived. 

In order, however, that there should be no misunderstanding 
as to the attitude of the United States, the Government of the 
United States announces to the Allied powers that it holds it to 
be the duty of belligerent powers to distinguish between sub- 
marines of neutral and belligerent nationality, and that responsi- 
bility for any conflict that may arise between belligerent warships 
and neutral submarines on account of the neglect of a belligerent 



78 NEUTRALITY AND TERRITORIAL WATERS 

to so distinguish between these classes of submarines must rest 
entirely upon the negligent power." (Ibid., p. 771.) 

The Netherlands Government took a position similar 
to that of the United States on the Allied memorandum. 
The Norwegian and other governments forbade the en- 
trance of submarines except on surface and flying na- 
tional flag. The regulations were changed from time to 
time. 

Disregard of neutral obligations. — According to ar- 
ticle 1 of XIII Hague Convention respecting the rights 
and duties of neutral powers in maritime war: 

Belligerents are bound to respect the sovereign rights of neutral 
Powers and to abstain, in neutral territory or neutral waters, 
from any act which would, if knowingly permitted by any Power, 
constitute a nonfulfillment of neutrality. 

The use of neutral waters for warlike purposes would 
be in violation of the law of nearly all maritime states. 
It is a right of the neutral that neutral territory be 
respected. This right does not necessarily imply that the 
rights of belligerents as regards each other would be 
entirely changed by the fact of their presence in neutral 
waters. Belligerents have often acted against each other 
in neutral waters. The arguments in support of such 
acts have varied. 

Violations of neutrality. — Sometimes there has been 
violation of neutral jurisdiction without intention or 
knowledge on the part of the actor. Before the princi- 
ple of internment was generally recognized, the viola- 
tion of neutral maritime jurisdiction was often argued 
to have been necessary as an act of self-defense because 
otherwise an enemy might take advantage of a sojourn 
in a neutral port to strengthen his forces in a manner 
not recognized as within the neutral's power to prevent. 
There were cases, particularly prior to the Russo-Japa- 
nese War 1904-1905, when internment became quite a 
general practice which shows that belligerents took mat- 
ters into their own hands. 



CONTROL OF MARGINAL SEA 79 

Acts in marginal sea. — Some have proposed to allow 
in the marginal sea acts which are not directly hostile 
in their nature. Such acts might be illustrated by the 
fueling or provisioning of a belligerent ship. Those 
who would allow such acts would forbid positive hostili- 
ties as the exercise of the right of visit or capture and of 
course actual firing upon the enemy. Neutrality which 
would permit the fueling of belligerent forces in neutral 
waters without restriction would hardly meet the re- 
quirements of modern standards. A belligerent force 
taking on fuel outside of neutral waters would be liable 
to attack from the opposing forces and would have to 
protect itself accordingly. Within neutral waters where 
hostilities between the belligerents are forbidden fueling 
might go on almost as in time of peace. The taking on 
of the supply of fuel permitted under the rules of neu- 
trality has in general the limitation that it is permitted 
in order to enable the ship to keep the sea. The proposi- 
tion of some of the advocates of the doctrine which 
would allow fueling at any time without restriction 
within neutral waters beyond the port limits would up- 
hold action on the part of a belligerent which in effect 
constitutes the neutral waters a base. Colliers and fuel 
ships might await in safety in neutral waters the ar- 
rival of a fleet and the fleet might return repeatedly for 
fueling. 

It is admitted that a neutral could not ordinarily and 
should not be required to exercise the same measures 
to prevent violations of neutrality in remote marginal 
seas and in ports. The supervision should be such as 
could reasonably be exercised without unduly throwing 
the burdens of war on the neutral. 

The action of a belligerent in using neutral jurisdic- 
tion for carrying on movements or undertakings which 
are of hostile nature is contrary to the obligations owed 
by the belligerent to the neutral state. It is the aim 
of the first article of The Hague Convention XIII to pro- 
hibit such conduct. The responsibility is placed upon the 



80 NEUTRALITY AND TERRITORIAL WATERS 

belligerent to abstain from acts which knowingly per- 
mitted by a neutral state would constitute a nonfulfill- 
ment of their neutrality. The nature of the obligation 
may be seen from the comment in the report upon this 
Article I submitted at The Hague Conference in 1907. 

Le principe est applicable a la guerre continentale comme a 
la guerre maritime, et il ne faut pas s'etonner que le Reglement 
elabore par la Deuxieme Commission au sujet des droits et des 
devoirs des Etats neutres sur terre commence par cette dispo- 
sition : " Le territoire des Etats neutres est inviolable." 

D'une maniere generate, les belligerants doivent s'abstenir dans 
les eaux neutres de tout acte qui, s'il etait tolere par l'Etat 
neutre, constituerait un manquement a la neutralite. II importe 
de remarquer, des a present, qu'un devoir du neutre ne 
correspond pas necessairement a un devoir du belligerant et 
cela est conforme a la nature des choses. On peut imposes au 
belligerant l'obligation absolue de s'abstenir de certains actes 
dans les eaux de l'Etat neutre ; il lui est aise, et, dans tous les 
cas, possible de satisfaire a cette obligation, qu'il s'agisse des 
ports ou des eaux territoriales. On ne peut, au contraire, 
imposer a l'Etat neutre l'obligation de prevenir ou de reprimer 
tous les actes que voudrait faire ou ferait un belligerant, parce 
que tres souvent l'Etat neutre ne sera pas en situation de 
remplir une pareille obligation. II peut ne pas savoir tout ce 
qui se passe dans ses eaux et il peut n'etre pas en etat de 
l'empecher. Le devoir n'existe que dans la mesure ou on peut le 
connaitre et le remplir. Cette observation regoit son application 
dans un certain nombre de cas. 

On a parfo's a se demander s'il y a lieu de distinguer entre les 
ports et les eaux territoriales : la distinction se comprend en ce 
qui concerne les devoirs du neutre, qui ne peut etre au meme degre 
responsable de se qui se passe dans les ports soumis a Taction 
directe de ses autories ou dans ses eaux territoriales, sur lesquelles 
il n'a souvent qu'un faible controle; la distinction ne se comprend 
pas pour le devoir du belligerant, qui est le meme partout. 
(Deuxieme Conference de la Paix, Tome I, p. 297.) 

Opinion of Mr. Adams on supply of coal. — The opin- 
ion of Mr. Charles Francis Adams before the Geneva 
Arbitration Tribunal covered the general subject of sup- 
ply of coal. The principles enunciated may for the most 
part apply to the supply of any kind of fuel. As the 
summary presented by Mr. Adams covers various phases 



GENEVA ARBITRATION, 187 2 81 

of the question of use of base for supplies, it may be some- 
what fully presented: 

This question of coals was little considered by writers on the 
law of nations, and by sovereign powers, until the present cen- 
tury. It has become one of the first importance, now that the 
motive-power of all vessels is so greatly enhanced by it. 

The effect of this application of steam-power has changed the 
character of war on the ocean, and invested with a greatly pre- 
ponderant force those nations which possess most largely the 
best material for it within their own territories, and the greatest 
number of maritime places over the globe where deposits may 
be conveniently provided for their use. 

It is needless to point out the superiority in this respect of the 
position of Great Britain. There seems no way of discussing the 
question other than through this example. Just in proportion to 
these advantages is the responsibility of that country when hold- 
ing the situation of a neutral in time of war. 

The safest course in any critical emergency would be to deny 
altogether to supply the vessels of any of the belligerents, except 
perhaps when in positive distress. 

But such a policy would not fail to be regarded as selfish, il- 
liberal, and unkind by all belligerents. It would inevitably lead 
to the acquisition and establishment of similar positions for them- 
selves by other maritime powers, to be guarded with equal ex- 
clusiveness, and entailing upon them enormous and continual 
expenses to provide against rare emergencies. 

It is not therefore either just or in the interest of other powers, 
by exacting severe responsibilities of Great Britain in time of 
war, to force her either to deny all supplies, or, as a lighter risk, 
to engage herself in war. 

It is in this sense that I approach the arguments that have 
been presented in regard to the supply of coals given by Great 
Britain to the insurgent American steamers as forming a base of 
operations. 

It must be noted that, throughout the war of four years, sup- 
plies of coal were furnished liberally at first, and more scantily 
afterward, but still indiscriminately, to both belligerents. 

The difficulty is obvious how to distinguish those cases of coals 
given to either of the parties as helping them impartially to other 
ports, from those furnished as a base of hostile operations. 

Unquestionably, Commodore Wilkes, in the VanderMlt, was very 
much aided in continuing his cruise at sea by the supplies ob- 
tained from British sources. Is this to be construed as getting a 
base of operations? 



82 NEUTRALITY AND TERRITORIAL WATERS 

It is plain that a line must be drawn somewhere, or else no 
neutral power will consent to furnish supplies to any belligerent 
whatever in time of war. 

So far as I am able to find my way out of this dilemma, it is in 
this wise: 

The supply of coals to a belligerent involves no responsibility 
to the neutral, when it is made in response to a demand pre- 
sented in good faith, with a single object of satisfying a legiti- 
mate purpose openly assigned. 

On the other hand, the same supply does involve a responsi- 
bility if it shall in any way be made to appear that the concession 
was made, either tacitly or by agreement, with a view to promote 
or complete the execution of a hostile act. 

Hence I perceive no other way to determine the degree of the 
responsibility of a neutral in these cases, than by an examina- 
tion of the evidence to show the intent of the grant in any spe- 
cific case. Fraud or falsehood in such a case poisons everything 
it touches. Even indifference may degenerate into willful negli- 
gence, and that will impose a burden of proof to excuse it before 
responsibility can be relieved. 

This is the rule I have endeavored to apply in judging the 
nature of the cases complained of in the course of this arbitra- 
tion. (Papers relating to the treaty of Washington, vol. 4, p. 
148.) 

Opinion of Sir Alexander Cockburn. — The position of 
Mr. Adams was criticised by one of the British repre- 
sentatives, sitting on the tribunal. He said : 

But a novel and, to my mind, most extraordinary proposition is 
now put forward, namely, that if a belligerent ship is allowed to 
take coal, and then to go on its business as a ship of war, this is 
to make the port from which the coal is procured " a base of 
naval operations," so as to come within the prohibition of the 
second rule of the treaty of Washington. 

We have here another instance of an attempt to force the 
words of the treaty to a meaning which they were never — at least 
so far as one of the contracting parties is concerned — intended to 
bear. It would be absurd to suppose that the British govern- 
ment, in assenting to the rule as laid down, intended to admit 
that whenever a ship of war had taken in coal at a British 
port and then gone to sea again as a war-vessel, a liability for all 
the mischief done by her should ensue. Nor can I believe that 
the United States Government had any such arriere pense'e in 
framing the rule; as, if such had been the case, it is impossible 
to suppose that they would not have distinctly informed the 



GENEVA ARBITRATION, 1872 83 

British government of the extended application they proposed to 
give to the rule. 

The rule of international law, that a belligerent shall not 
make neutral; territory the base of hostile operations, is founded 
on the principle that the neutral territory is inviolable by the 
belligerent, and that it is the duty of the neutral not to allow 
his territory to be used by one belligerent as a starting-point for 
operations against the other. This is nowhere better explained, 
as regards ships of war, than by M. Ortolan, in the following 
passage : 

" Le principe general de l'inviolabilite du territoire neutre exige 
aussi que Temploi de ce territoire reste franc de toute mesure 
ou moyen de guerre, de l'un des. belligerants contre l'autre. 
C'est une obligation pour chacun des belligerants de s'en abstenir ; 
c'est aussi un devoir pour l'etat neutre d'exiger cette abstention ; 
et c'est aussi pour lui un devoir d'y veiller et d'en maintenir 
l'observation a l'encontre de qui que ce soit. Ainsi il appartient 
a l'autorite qui commande dans les lieux neutres, ou des navires 
belligerants, soit de guerre, soit de commerce, ont ete regus, de 
prendre des mesures necessaires pour que l'asile accorde ne tourne 
pas en machination hostile contre l'un des belligerants; pour 
empecher specialement qu'il ne devienne un lieu d'ou les bati- 
ments de guerre ou les corsaires surveillent les navires ennemis 
pour les poursuivre et les combattre, et les capturer lorsqu'ils 
seront parvenus au-dela de la mer territoriale. Une de ces 
mesures consiste a empecher la sortie simultanee des navires 
appartenant a des puissances ennemies l'une de l'autre. 1 " 

It must be, I think, plain that the words " base of operations " 
must be accepted in their ordinary and accustomed sense, as 
they have hitherto been understood, both in common parlance 
and among authors who have written on international law. 
Now, the term " base of warlike operations " is a military term, 
and has a well-known sense. It signifies a local position which 
serves as a point of departure and return in military operations, 
and with which a constant connection and communication can 
be kept up, and which may be fallen back upon whenever neces- 
sary. In naval warfare it would mean something analogous — 
a port or water from which a fleet or a ship of war might watch 
an enemy and sally forth to attack him, with the possibility of 
falling back upon the port or water in question, for fresh supplies 
or shelter, or a renewal of operations. (Papers relating to treaty 
of Washington, vol. 4, p. 422.) 

1 Diplomatie de la mer, vol. i, p. 291. 



84 NEUTRALITY AND TERRITORIAL WATERS 

Later speaking of the supply of coal the Shenandoah 
was allowed to take in Melbourne, Sir Alexander Cock- 
burn said: 

But it is said that by taking in coal at Melbourne, with the 
ulterior purpose of making war on the whaling vessels of the 
United States, this vessel was enabled to make the port of Mel- 
bourne a " base of naval operations." 

As I have already observed, when the law on this subject was 
under discussion, the application of such a rule in favor of 
the United States to the prejudice of Great Britain would be a 
flagrant injustice, seeing that, as I then showed, ships of war 
of the United States obtained many thousand tons of coal, under 
exactly the same circumstances, that is to say, when they had 
particular " naval operations " in immediate view. If this doc- 
trine is to hold, every time a vessel, having a particular belliger- 
ent purpose in view, takes in coal, and proceeds on such purpose, 
the port will at once be converted into a base of naval operations. 
The same reasoning would of course apply, and in the same degree, 
to repairs. 

This proposition is, to my mind, utterly unreasonable, as being 
altogether inconsistent with any idea that ever has been, or 
properly can be, attached to the term " base of operations ; " and 
is, moreover, in the most flagrant degree unjust, if it is to have 
the effect of imposing on the neutral any responsibility to the 
other belligerent. For it is obviously inconsistent with common 
justice that the neutral state shall suffer for that to which it is 
not only no party, but of which it has also no knowledge. By the 
common practice of nations, as well as by the regulations of the 
government, a belligerent vessel is allowed to have the benefit of 
necessary repairs, and to take a supply of coal without the local 
government being entitled to inquire into her ulterior destination. 
No such inquiry is prescribed by the regulations in question, or 
by those made by any other nation ; nor has any publicist ever sug- 
gested that such a proceeding should be adopted. No such inquiry 
could, with propriety, be made ; nor could the commander of the 
ship be called upon to answer it if made. The knowledge of his 
intended course might expose him to the attack of an enemy. 
No such question, so far as I am aware, was ever put to a bellig- 
erent vessel during the whole course of the war. None such was 
ever put to a ship of the United States when applying for coal at 
a British port. This being so, to say that, the local government 
being in ignorance of the destination of the vessel, a responsi- 
bility is to be incurred because the belligerent, in obtaining this 
accommodation, has an ulterior operation in view, as to which, by 



ATTITUDE ON COALING, 1912 85 

some violent distortion of language, the port may be said to be thus 
rendered a base, but of which ulterior operation the neutral 
knows nothing, appears to me to be an outrage not only of the 
first principles of justice, but also upon the plainest dictates of 
common sense. (Ibid., p. 498.) 

Consideration in 1912. — The Naval War College con- 
sidered the question of base with particular reference 
to coaling in the conferences of 1912. It was stated that 
under the circumstances specified where one belligerent 
government protests against furnishing coal to naval 
colliers of the opponent in a neutral port, the neutral 
state should heed the request. In this case it was known 
that such coal had been furnished and the protest was 
against the continuance of the practice. In referring to 
the conception of base under such circumstances it was 
said : 

The word " base " had been used in many senses. It is often 
coupled with some other word which modifies its meaning. The 
most common expression is " base of communications," though 
" base of supplies," " base of communications " and other expres- 
sions are used. The modifying words are differently interpreted. 

The use of neutral territory by a belligerent as a base in the 
sense of a place in which a belligerent may habitually prepare to 
wage war more effectively against his enemy, fit out expeditions, 
take refuge, or establish a rendezvous, is usually regarded as con- 
trary to, or a violation of neutrality. The Hague Convention rela- 
tive to the Rights and Duties of Neutral Powers in Maritime War 
provides at the outset that the belligerent shall not throw all 
obligation upon the neutral, saying: 

"Article I. Belligerents are bound to respect the sovereign 
rights of neutral powers and to abstain, in neutral territory or 
neutral waters, from any act which would, if knowingly per- 
mitted by any power, constitute a nonfulfillment of neutrality." 
(1912, Naval War College, International Law Situations, p. 153.) 

Danish order, 1912. — In the Danish order of Decem- 
ber 20, 1912, there were provisions which were quite in 
detail in regard to the use by belligerents of national 
waters. Even the possibility of the establishing of fuel 
depots in Danish waters was foreseen. In part 4, para- 
graph 2, it was provided : 



86 NEUTRALITY AND TERRITORIAL WATERS 

It is prohibited to organize fuel depots on Danish territory or 
on vessels staying in Danish territorial waters. (1916, Naval 
War College, International Law Topics, p. 52.) 

Opinion of Professor Holland. — Professor Holland of 
Oxford University, in 1913, president of the Institute 
of International Law, wrote during the Russo-Japanese 
War of 1904-5 in regard to furnishing coal to the Rus- 
sian fleet. He mentions that ordinary commerce be- 
tween neutrals and belligerents is not terminated by war, 
and that this commerce even in articles of contraband 
may be subject only to the risks of war. He further says : 

It by no means follows that British shipowners may charter 
their vessels "for such purposes as following the Russian fleet 
with coal supplies." Lord Lansdowne's recent letter to Messrs. 
Woods, Taylor and Brown is explicit to the effect that such con- 
duct is " not permissible." Lord Lansdowne naturally confined 
himself to answering the question which had been addressed by 
those gentlemen to the Foreign Office; but the reason for his 
answer is not far to seek. The unlawfulness of chartering British 
vessels for the purpose above mentioned is wholly unconnected 
with the doctrine of contraband, but is a consequence of the in- 
ternational duty, which is incumbent on every neutral State, of 
seeing that its territory is not made a base of belligerent opera- 
tions. The question was thoroughly threshed out as long ago as 
1870, when Mr. Gladstone said in the House of Commons that 
the Government had adopted the opinion of the law officers — 

" That if colliers are chartered for the purpose of attending 
the fleet of a belligerent and supplying it with coal, to enable 
it to pursue its hostile operations, such colliers would, to all 
practical purposes, become store-ships to the fleet, and would be 
liable, if within reach, to the operation of the English law under 
the (old) Foreign Enlistment Act." 

British colliers attendant on a Russian fleet would be so un- 
deniably aiding and abetting the operations of that fleet as to 
give just cause of complaint against us to the Government of 
Japan. The British shipper of coal to a belligerent fleet at sea, 
besides thus laying his Government open to a charge of neglect of 
an international duty, lays himself open to criminal proceedings 
under the Foreign Enlistment Act of 1870. By section 8 (3) and 
(4) of that Act, " any person within H. M. Dominions " who 
(subject to certain exceptions) equips or despatches any ship, with 
intent, or knowledge, that the same will be employed in the 



GENEVA AKBITRATION, 187 2 87 

military or naval service of a foreign State, at war with any 
friendly State, is liable to fine or imprisonment, and to the for- 
feiture of the ship. By section 30, " naval service " covers " user 
as a store-ship," and " equipping " covers furnishing a ship with 
" stores or any other thing which is used in or about a ship for 
the purpose of adapting her for naval service." Our Government 
has, therefore, ample powers for restraining, in this respect, the 
use of its territory as a base. It has no power, had it the wish 
(except for its own protection, under a different statute), to 
restrain the export of contraband of war. 

It would tend to clearness of thought if the term " contraband " 
were never employed in discussions with reference to prohibition 
of the supply of coal to a belligerent fleet at sea. (Letters on 
War and Neutrality, p. 93.) 

Award of the tribunal. — The award of the Geneva 
Tribunal referring to coaling stated that " in order to 
impart to any supplies of coal a character inconsistent 
with the second rule, prohibiting the use of neutral ports 
or waters, as a base of naval operations for a belligerent, 
it is necessary that the said supplies should be connected 
with special circumstances of time, of persons, or of 
place, which may combine to give them such character." 
(1 Moore, International Arbitrations, p. 574.) 

Restatement of rule. — The rule of the treaty of Wash- 
ington, 1871, in regard to the use of a neutral port or 
waters as a base of operations was restated in the 
American case as follows : 

The second Rule provides that a neutral government is bound 
not to permit or suffer either belligerent to make use of its 
ports or waters as the base of naval operations against the other, 
or for the purpose of the renewal or augmentation of military 
supplies or arms, or the recruitment of men. 

A question has been raised whether this rule is understood 
to apply to the sale of military supplies or arms in the ordinary 
course of commerce. The United States do not understand that 
it is intended to apply to such a traffic. They understand it to 
apply to the use of a neutral port by a belligerent for the re- 
newal or augmentation of such military supplies or arms for the 
naval operations referred to in the rule. Taken in this sense, 
the United States maintain that the same obligations are to be 



88 NEUTRALITY AND TERRITORIAL WATERS 

found, (expressed in other words,) first, in the Foreign Enlist- 
ment Act of 1819 ; and, secondly, in the instructions to the naval 
forces of Great Britain during the rebellion. 

The Tribunal of Arbitration will not fail to observe the breadth 
of this rule. 

The ports of waters of the neutral are not to be made the base 
of naval operations by a belligerent. Vessels of war may come 
and go under such rules and regulations as the neutral may pre- 
scribe ; food and the ordinary stores and supplies of a ship, not of 
a warlike character, may be furnished without question, in quan- 
tities necessary for immediate wants ; the moderate hospitalities 
which do not infringe upon impartiality may be extended ; but no 
act shall be done to make the neutral port a base of operations. 
Ammunition and military stores for cruisers cannot be obtained 
there ; coal cannot be stored there for successive supplies to the 
same vessel, nor can it be furnished or obtained in such supplies ; 
prizes cannot be brought there for condemnation. The repairs 
that humanity demand can be given, but no repairs should add to 
the strength or efficiency of a vessel, beyond what is absolutely 
necessary to gain the nearest of its own ports. 

In the same sense are to be taken the clauses relating to the 
renewal or augmentation of military supplies or arms and the 
recruitment of men. As the vessel enters the port, so is she to 
leave it, without addition to her effective power of doing injury 
to the other belligerent. If her magazine is supplied with powder, 
shot, or shells ; if new guns are added to her armament ; if pistols, 
or muskets, or cutlasses, or other implements of destruction, are 
put on board ; if men are recruited ; even if, in these days when 
steam is a power, an excessive supply of coal is put into her 
bunkers, the neutral will have failed in the performance of its 
duty. (1, Papers, treaty of Washington, p. 70.) 

Supplies. — In the discussions during the Geneva Ar- 
bitration there were many claims and counterclaims. 
The United States (thought) that- 
British territory was, during the whole struggle, the base of 
the naval operations of the insurgents. The first serious fight 
had scarcely taken place before the contracts were made in Great 
Britain for the Alabama and the Florida. The contest was nearly 
over when Waddell received his orders in Liverpool to sail thence 
in the Laurel in order to take command of the Shenandoah and to 
visit the Arctic Ocean on a hostile cruise. 

There also was the arsenal of the insurgents, from whence they 
drew their munitions of war, their arms, and their supplies. It 



GENEVA ARBITRATION, 1872 89 

is true that it has been said, and may again be said, that it was 
no infraction of the law of nations to furnish such supplies. But, 
while it is not maintained that belligerents may infringe upon 
the rights which neutrals have to manufacture and deal in such 
military supplies in the ordinary course of commerce, it is as- 
serted with confidence that a neutral ought not to permit a bellig- 
erent to use the neutral soil as the main if not the only base of 
its military supplies, during a long and bloody contest, as the 
soil of Great Britain was used by the insurgents. (1, Papers 
relating to the treaty of Washington, p. 125.) 

British reply. — To the statement made by the United 
States as to the interpretation of the second rule of the 
treaty of Washington the British countercase makes 
reply : 

According to this interpretation a neutral government which 
should suffer a belligerent cruiser to effect repairs beyond what 
are absolutely necessary for gaining the nearest of its own ports, 
or to receive more coal than would be enough for the same pur- 
pose, would commit a breach of neutral duty. It may, indeed, 
sometimes be found convenient by neutral powers to impose re- 
strictions of this nature, more or less stringent, on the armed ves- 
sels of belligerents admitted into their ports ; and this was done 
by Great Britain during the civil war. But such restrictions were 
not then, and are not now, dictated by any rule of international 
obligation. Were they to become such, and were the obligation 
to be construed against the neutral with the breadth and rigor 
for which the United States contend, it may be feared that neu- 
tral powers would rarely be secure against complaints and de- 
mands for compensation on the part of one belligerent or 
another. 

Having constantly during the war used British ports as places 
of resort for its own cruisers, and having repeatedly obtained for 
them therein successive supplies of coal, which were consumed, not 
in returning home, but in cruising, the Government of the United 
States now appears to represent this very act as a breach of 
neutral duty, and to hold Great Britain liable for any cases in 
which confederate vessels may have succeeded in obtaining simi- 
lar facilities. 

This question, however, does not regard Great Britain alone. 
The Government of the United States has plainly declared that 
it regards these rules as no more than a statement of previously 



90 NEUTRALITY AND TERRITORIAL WATERS 

established rules of international law. B So far as regards the 
second rule Her Britannic Majesty's government concurs in th : s 
view. The expressions upon which the United States rely belong 
to a class in common use among publicists, who, in attempting 
to define the duties of neutrality, are accustomed to employ these 
words or others equivalent to them, and of not less extensive 
meaning. Thus the phrase, " base of naval operations," em- 
ployed in this connection, denotes the use of neutral territory by 
a belligerent ship as a station or point of departure, where she 
may await and from whence she may attack her enemy. That 
these expressions have not hitherto received the construction 
which the United States would put upon them is certain. Whether 
they are to receive it in future is a question which concerns not 
Great Britain only, but all other powers which may hereafter find 
themselves neutral in maritime warfare. (Two papers, treaty of 
Washington, p. 221.) 

Self-defense, the " Caroline" — In 1841, Mr. Webster, 
Secretary of State, in a communication to Mr. Fox, 
British Minister, said : 

It is admitted that a just right of self-defence attaches always 
to nations as well as to individuals, and is equally necessary 
for the preservation of both. But the extent of this right is a 
question to be judged of by the circumstances of each particular 
case; and when its alleged exercise has led to the commission of 
hostile acts within the territory of a power at peace, nothing less 
than a clear and absolute necessity can afford ground of justifica- 
tion. (6, Webster's Works, p. 255.) 

Further, referring to the destruction of the Caroline 
by the British, Mr. Webster said : 

It will be for that government to show a necessity of self- 
defence, instant, overwhelming, leaving no choice of means, and 
no moment for deliberation. It will be for it to show, also, that 
the local authorities of Canada, even supposing the necessity of 
the moment authorized them to enter the territories of the 
United States at all, did nothing unreasonable or excessive ; since 
the act, justified by the necessity of self-defence, must be limited 
by that necessity, and kept clearly within it. (Ibid., p. 261.) 

2 Case of the United States, pp. 148, 149. See also p. 162, and the 
President's message to Congress, Dec. 4, 1871. " The contracting parties in 
the treaty have undertaken to regard as between themselves certain prin- 
ciples of public law, for which the United States have contended from the 
commencement of their history. They have also agreed to bring those 
principles to the knowledge of the other maritime powers, and to invite 
them to accede to them." 



SELF-DEFENSE 



91 



While Mr. Webster's position in 1844 is taken as a 
correct statement of the law, the strain of war has put it 
to severe test. Naturally writers' in belligerent countries 
during anc l immediately after the World War were dis- 
posed to find reasons for supporting acts of their national 
or allied forces. This was often manifest in regard to 
the attitude toward new agencies of warfare such as the 
submarine and aircraft, but -the principles of law are not 
dependent upon the agencies as has been shown from 
early times when new forms of weapons were viewed 
with disfavor or even prohibited. The early object of 
war to conquer the enemy was gradually superseded by 
the object of bringing the enemy to terms, and later to 
bring the enemy to terms with the least loss of life and 
property, and then to bring the enemy to terms with the 
least loss of life and property without unnecessary 
suffering. 

S 'elf -defense, general . — As a basis of international law 
the right of states to exist is acknowledged. A state must 
therefore have the right to defend its existence. In de- 
fending its existence, it must recognize the right of other 
states to exist. As between belligerents in time of war 
this mutual recognition of the right of existence is tem- 
porarily suspended except as involved in conduct con- 
formable to the laws of war. The existence of war 
should not, however, imperil the existence of states which 
are neutral and not parties to the war. That neutral 
states may be inconvenienced by war is entirely possible 
and that neutral and belligerent rights may at times be 
in conflict is also possible. This is recognized in the in- 
terference with commerce as in blockade, contraband, 
and other admitted war practices. 

Quite different is an act of war within neutral juris- 
diction. Such acts are prohibited because a neutral may 
be responsible for acts which take place within its juris- 
diction, and in recent years it has been held that a neu- 
tral state is bound to use due diligence to prevent such 

138120—32 7 



92 NEUTRALITY AND TERRITORIAL WATERS 

acts. Due diligence has been interpreted as the use of 
the means at the disposal of the neutral state. 

If in the presence of an adequate neutral force of a 
coastal state, a much inferior belligerent force should be 
permitted to attack or to capture in the neutral jurisdic- 
tion an opponent's merchant vessel, the neutral's duty- 
would not be fulfilled. If, however, on a remote neutral 
coast such an attack or capture should be made, the neu- 
tral obligation might be slight. In both cases the bellig- 
erent's obligation would be the same. If a belligerent 
submarine should suddenly appear in neutral waters in a 
position which apparently immediately threatened its 
opponent's fleet, there might be a ground for action 
against the submarine as in self-defense. 

SOLUTION 

(a) (1) The aircraft of X should not attack the sub- 
marine of Y unless on grounds other than mere presence 
of the submarine in the strait of R. 

(2) The presence of the cruiser of State R would make 
it more imperative that any attack by the aircraft of X 
upon the submarine of Y should be based upon some hos- 
tile act of the submarine of Y. 

(b) State R should intern the vessels of State X if 
they are or have been using the waters of R as a base. 

Conclusions. — (a) From practice of states and from 
accepted rules at present (1) a belligerent is under obli- 
gation to refrain within neutral jurisdiction from any 
act which, if knowingly permitted by a neutral, would be 
a nonfulfillment of neutrality; (2) any warlike act 
against an enemy within neutral jurisdiction is a viola- 
tion of international law; (3) reparation for such an act 
is due to the neutral state; (4) the neutral may be under 
obligation to the injured belligerent if due diligence has 
not been used though; (5) the act may be valid as 
between the belligerents. 

As to Situation II it may be said that (a) (1) the sub- 
marine of State Y is conforming to the general require- 
ment that submarines in neutral waters navigate upon 



SOLUTION 93 

the surface. The aircraft of State X is flying within 
neutral jurisdiction which in general is contrary to neu- 
trality. The submarine of Y if conforming to the laws 
of R has the same right in the strait as the fleet of X. 
The fact that it is in a favorable position to attack the 
fleet of X gives the force of X no right to attack the 
submarine of Y nor does the submarine have any right 
to attack the fleet of X. 

(2) The fact that a cruiser of State R is near would 
not change the relative rights of the belligerents, but 
would be an evidence that State R proposed to main- 
tain its neutrality and that the forces of X and Y were 
to that degree more secure as regards each other. 

(&) This land of State R consisting of islands not 
more than 6 miles apart in the area in which the vessels 
of State X are refueling incloses open water 7 miles 
from any of the islands. 

It has been generally held that such water is analogous 
to a bay and the surrounding state has over it exclusive 
jurisdiction. 

Consequently the refueling is taking place within the 
jurisdiction of State R. 

The aircraft Y can not lawfully traverse the air above 
this area but if it makes its observation from the high 
seas, it commits no violation of R's neutrality and even 
if it does, that in no way changes the obligations of 
State R. 

The refueling to peace capacity of full bunkers not. 
more often than once in three months in a neutral port 
is usually permitted, but under supervision of port 
authorities. 

At the point 7 miles from any land, the port authori- 
ties, if an} 7 , would not ordinarily be exercising super- 
vision because the commercial vessel would not have en- 
tered port and would not have deposited its papers. 

The demand of the aircraft of State Y is correct, and 
State R should intern the vessels of State X if they are 
or have been using its waters as a base. 



Situation III 

BELLIGERENCY AND MARITIME JURISDICTION 

States X and Y are at war. Other states neutral. 

(a) The Xerxes, a cruiser of State X, is refueling 
from the Petro, a tanker, in quiet water more than 3 
miles from the coast of State R, the only state within 100 
miles, but inside and more than 3 miles from a reef off 
the coast of State R. The reef is generally submerged, 
but certain rocks are exposed at low tide. State Y pro- 
tests to State R. State R takes no action upon the pro- 
test. A submarine, Y 50, of State Y, then sinks the 
Petro. The Y 50 is brought to the surface b}^ depth 
bombs from the Xerxes, but succeeds in beaching itself 
on a reef less than 3 miles from State R. The Xerxes 
takes off the crew of the Y 50 and makes them prisoners 
of war. 

Have States X, Y, and R grounds for protests ? 

(b) Later the Xenophon, a companion ship of the 
Xerxes, runs upon the reef at a point 6^2 miles from any 
point of State R. A salvage ship flying the flag of and 
belonging to a corporation of State R is endeavoring to 
get the Xenophon off. A submarine of State Y, the Y 
51 appears and demands that salvaging operations cease, 
that the crew of the Xenophon be taken on board the 
salvaging ship as the Y 51 is about to destroy the Xeno- 
phon by torpedo fire. A cruiser of State R is standing 
by, and the Xenophon's armament and boats are intact. 
What action ? 

solution 

(a) As neutral State R takes no action, the action of 
submarine Y 50 is lawful. The defense of cruiser 
94 



PRIOR DISCUSSIONS 95 

Xerxes is lawful, but the taking of the crew of the 
beached Y 50 as prisoners of war is not lawful. 

State X has no ground for valid protest. 

State Y may protest against the taking of the crew 
of Y 50 as prisoners of war. 

State R may protest against the action of the Xerxes 
in entering its waters and making the crew of Y 50 
prisoners of war. 

(b) The place of salvaging is in the high sea and the 
salvaging operations are lawful. The salvaging vessel 
is under obligation to cease operations but under no- 
obligation to take the crew of the Xenophon on board. 
The relative weakness of the submarine Y 51 gives it no 
right to demand exceptional services from the salvaging 
vessel. The Xenophon 's armament and boats being in- 
tact, the conditions for which the Hague-Geneva Con- 
vention provides have not arisen, and the salvaging ves- 
sel may decline to take any action except to discontinue 
salvaging operations unless upon agreement of all 
parties. 

Situations I and II, 1931. — In Situations I and II 
above, many citations equally applicable to Situation 
III are given. These are not repeated in the following- 
pages but may be found under the appropriate heading 
from the index. 

Discussions at Naval War College. — The problem of 
taking on fuel for vessels of war in neutral jurisdiction 
has been considered in various aspects at this Naval War 
College. In the early part of the nineteenth century, it 
was usually some aspect of coaling that was discussed. 
In 1901 coal as contraband and the supply to belligerent 
ships was mentioned. In 1902 the amount that might be 
taken was considered. In 1903 the proposed Naval War 
Code was before the conference but in 1904 the taking of 
coal from supply ships arose. In 1905 the question was 
" what are the circumstances under which food stuffs 
and coal, and raw material, such as cotton, can be de- 
clared to be contraband? " The supplying of fuel or oil 



96 BELLIGERENCY AND MARITIME JURISDICTION 

to belligerent vessels in neutral ports was one of the 
topics in 1906. The status of a collier in a foreign port 
and the nature of collier service were topics in 1907. 
Coaling in neutral waters became the object of further 
attention in 1908 in consequence of the provisions of The 
Hague Conventions of 1907 and the discussions at The 
Hague Conference of 1907. In 1909 the Declaration of 
London brought many problems of neutral rights and 
obligations before the conference, and in 1910 one of the 
situations related primarily to coaling within neutral 
jurisdiction. Such recurrence of the topic of coaling 
gives evidence of the problems which centered about tak- 
ing on fuel in the first decade of the nineteenth century. 

Geneva Arbitration, 1871. — The Geneva Arbitration 
Tribunal under the treaty of Washington, May 8, 1871, 
relating particularly to the Alabama claims, gave much 
attention to coaling as coal was at that time a great 
source of motive power. Reference has often been made 
to the arguments and discussion before the tribunal in 
the publications of the Naval War College, but it seems 
desirable to repeat some of these, as the award of the 
tribunal and the articles of the treaty of Wash- 
ington have become the basis of modern neutrality 
proclamations. 

The rules of the treaty of Washington which relate 
to this matter were as stated in Article VI, that — 

A neutral Government is bound — 

First, to use due diligence to prevent the fitting out, arming, 
or equipping, within its jurisdiction, of any vessel which it has 
reasonable ground to believe is intended to cruise or to carry 
on war against a Power with which it is at peace ; and also to 
use like diligence to prevent the departure from its jurisdiction 
of any vessel intended to cruise or carry on war as above, such 
vessel having been specially adapted, in whole or in part, within 
such jurisdiction, to warlike use. 

Secondly, not to permit or suffer either belligerent to make use 
of its ports or waters as the base of naval operations against the 
other, or for the purpose of renewal or augmentation of military 
supplies or arms, or the recruitment of men. 



EARLY CASES 97 

Thirdly, to exercise due diligence in its own ports and waters, 
and, as to all persons within its jurisdiction, to prevent any viola- 
tion of the foregoing obligations and duties. (17 U. S. Stat. 863.) 

Early American cases. — As early as 1793 the question 
of capture in American waters arose. The French frig- 
ate Embuscade captured the British ship Grange in the 
Delaware Bay. The Attorney General advised the Gov- 
ernment that the Bay was within the jurisdiction of the 
United States and that the Grange should be released 
and the Grange was released. (Amer. State Papers, 1 
Foreign Relations, p. 148.) Jefferson at this period rec- 
ognized that the obligation to maintain neutrality ex- 
tended to 3 miles. The neutrality act of June 5, 1794, 
gave for the United States clear principles of conduct 
which in later years have been widely followed. Article 
VII of the Jay treaty mentions specifically the satisfac- 
tion of claims of British merchants and others who have 
" sustained loss and damage by reason of the capture of 
their vessels and merchandise, taken within the limits 
and jurisdiction of the States." Under this article the 
British brig Pilgrim, captured October 6, 1793, within 
2% miles from the United States, was adjudged to be 
restored. 

During the War of 1812 there were several cases in 
which belligerents made use of territorial waters in hos- 
tilities. The American frigate Essex was attacked by 
the British frigate Phoebe and sloop Cherub in 1814 in 
the territorial waters off Valparaiso and the Levant, an 
American prize, was chased into Port Praya and cap- 
tured while there. The American privateer General 
Armstrong was destroyed by a British squadron in the 
same year in the port of Fayal. Such acts led to vigor- 
ous protests on the part of the United States to the neu- 
tral states. The case of the General Armstrong was 
made the basis of a long pending claim against Portugal 
which was at length referred to Louis Napoleon, w T ho 
in 1852 rendered an award to the effect that Portugal 



98 BELLIGERENCY AND MARITIME JURISDICTION 

was not liable as the local authorities had not been called 
upon to furnish protection, the American privateer hav- 
ing fired upon a British longboat which the captain of 
the General Armstrong maintained was planning to 
board the privateer. The claim came before the Court 
of Claims of the United States on the ground that it 
was not properly placed before Louis Napoleon and was 
disallowed. Congress subsequently granted nearly $71,- 
000 to the claimant as Senator Piatt recognizing the 
patriotism of the personnel of the General Armstrong, 
said also " it appeals strongly to the imagination." In 
the case of the Anna, which the British had captured 
within 3 miles of the coast of the United States off the 
mouth of the Mississippi and brought to England, Sir 
William Scott (Lord Stowell) said in 1805: 

The conduct of the captors has on all points been highly repre- 
hensible. * * * In such a case it would be falling short of 
the justice clue to the violated rights of America, and to the indi- 
viduals who have sustained injury by such misconduct, if I did 
not follow up the restitution which has passed on the former day, 
with a decree of costs and damages. (5 C. Robinson Admiralty 
Reports, p. 373.) 

The U. S. S. Wachusett on October 7, 1864, captured 
in the harbor of Bahia, Brazil, and took to the United 
States the Confederate cruiser Florida. Brazil demanded 
reparation. The President disavowed the act, suspended 
the commander of the Wachusett, dismissed the consul 
who had advised the capture, ordered a salute of the 
Brazilian flag, released the crew of the Florida and the 
Secretary of State declared the capture of the Florida to 
be " an unauthorized, unlawful, and indefensible exer- 
cise of the naval force of the United States, within a 
foreign country, in defiance of its established and duly 
recognized Government." 

It is clear that hostilities within neutral maritime jur- 
isdiction have been increasingly regarded as without the 
sanction of law. The obligations of a neutral to prevent 
even the use of its territory as a base is similarly evident 



THE "TWEE GEBROEDERS" 99 

and was brought out clearly in the Alabama award and 
in neutrality proclamations since 1871. 

The " Twee Gebroeders," — One of the early cases in 
regard to belligerent use of territorial waters, arose in 
consequence of a claim that on July 14, 1799, four Dutch 
ships had been taken while they were in neutral terri- 
torial waters. This case relating particularly to the 
Twee Gebroeders came before the British Prize Court in 
1800. 

It is said that the ship was, in all respects, observant of the 
peace of the neutral territory; that nothing was done by her 
which could affect the right of territory, or from which any 
inconvenience could arise to the country within whose limits 
she was lying, inasmuch as the hostile force which she employed 
was applied to the captured vessel lying out of the territory. 
But that is a doctrine that goes a great deal too far. I am of 
opinion that no use of a neutral territory, for the purposes of 
war, is to be permitted. I do not say remote uses, such as 
procuring provisions and refreshments, and acts of that nature, 
which the law of nations universally tolerates ; but that no 
proximate acts of war are in any manner to be allowed to origi- 
nate on neutral grounds ; and I cannot but think that such an 
act as this, that a ship should station herself on neutral terri- 
tory, and send out her boats on hostile enterprises, is an act of 
hostility much too immediate to be permitted. For, suppose that 
even a direct hostile use should be required to bring it within 
the prohibition of the law of nations, nobody will say that the 
very act of sending out boats to effect a capture is not itself an 
act directly hostile, not complete, indeed, but inchoate, and 
clothed with all the characters of hostility. If this could be 
defended, it might as well be said that a ship lying in a neutral 
station might fire shot on a vessel lying out of the neutral terri- 
tory ; the injury in that case would not be consummated nor 
received on neutral ground ; but no one would say that such 
an act would not be an hostile act, immediately commenced 
within the neutral territory. And what does it signify to the 
nature of the act, considered for the present purpose, whether 
I sent out a cannon-shot which shall compel the submission of 
a vessel lying at two miles distance, or whether I send out a 
boat armed and manned, to effect the very same thing at the 
same distance? It is in both cases the direct act of the vessel 
lying in neutral ground. The act of hostility actually begins, 



100 BELLIGERENCY AND MARITIME JURISDICTION 

in the latter case, with the launching and manning and arming 
the boat that is sent out on- such an errand of force. (The Twee 
Gebroeders, 3 C. Robinson, p. 162.) 

German ordinance, 1909. — The German ordinance of 
September 30. 1909, made provisions in regard to the 
right of capture which would in general apply to hos- 
tilities in neutral waters as follows : 

Art. 3. The right of capture does not hold — 

(a) Within neutral waters; i. e., within a sea area, 3 sea 
miles wide, measured from the low-water coast line, bordering 
the coast and the islands and indentations appertaining thereto. 
As appertaining are: Islands- which are not farther than 6 
miles distant from one of the mainland coasts of the same State ; 
indentations whose coast is exclusively in the possession of the 
neutral State and whose opening is 6 sea miles or less wide. 

(&) Within those waters which are by convention closed to 
operations of war or to ships of war. These are : 

"(a) The Suez Canal, including its entrance harbors and a 
sea area of 3 sea miles beyond them. (Art. 4, sec. 1, of the treaty 
of Constantinople of October 29, 1888.) 

"(/3) The Bosphorus and the Dardanelles, so far as Turkey 
is not herself a belligerent. (Treaty of London concerning nar- 
row seas of July 13, 1841 ; art. 10 of the Peace of Paris of 
March 30, 1865, and Appendix I thereto ; art. 2 of the treaty of 
London of March 13, 1871; art. 63 of the treaty of Berlin of 
July 13, 1878.) 

"(7) The waters of Corfu and Paxe, so far as no other 
power than Greece, Great Britain, France, Russia, Austria- 
Hungary, and Germany are parties to the war. (Art. 2. of the 
treaty of London of November 14, 1863, and art. 2 of the treaty 
of London of March 24, 1864.) 

"(5) The mouths of the Danube. (Art. 42 of the treaty of 
Berlin of July 13, 1878.) 

"(e) The mouths of the Congo and Niger and the coastal 
waters adjacent thereto. (General agreement of the Berlin con- 
ference of February 26, 1888, arts. 25 and 33.) The right of cap- 
ture may also be no further exercised when a merchant vessel 
during the course of pursuit or while under visit and search 
reaches the waters referred to in (a) and (&)." (1925, Naval 
War College, International Law Documents, p. 3.) 

The German Prize Code of 1916 (art. 3) states that 
" a war vessel may, of course, pass through neutral terri- 



NORWEGIAN COAST 101 

torial waters in order to hold up a ship outside these 
limits." 

Nomcegian coast. — While this Situation III refers to 
no specific coast and while the same type of coast forma- 
tion so far as jurisdictional problems may arise in areas 
of shallow waters or where coral reefs prevail, the Nor- 
wegian coast has many striking characteristics. These 
were mentioned in a report presented by a Royal com- 
mittee in 1924. The committee said : 

The coastal waters of Norway with their outlying banks are 
characteristic and quite different from those of other European 
countries. They also vary greatly in different parts of the coun- 
try. This remarkable character of the coast is due to the fact 
that Norway is a mountainous country — an irregular mass of 
rock — furrowed and cleft by an infinite number of gullies and 
valleys. The coast line winds in and out of bays and fjords, 
which in many places cut very deeply into the mainland. Thus 
the coast is highly variable and this variability is intensified by 
the numerous large and small islands, islets, holms and rocks that 
lie strewn at various distances from the mainland proper. Only 
two comparatively short stretches of coast are without their 
skerry guard, viz, Jaederen in the southwest, and east Mager0en 
on the northern coast. Along these stretches of coast that possess 
a skerry guard, i. e. the predominant part of the coast, tall 
pointed mountain tops rise from the bottom of the sea nearly 
up to the surface of the water. These hidden rocks or shallows, 
with dividing furrows and channels, cause still greater variability 
in the formation of the sea floor. As a rule the latter descends 
from the shore in terraces with steep, mountainous precipices. 
The formation common to other countries, viz. banks sloping 
evenly from the shore to an outer ridge of banks, is very rare in 
Norway, and is limited more or less to the stretches where there 
is no skerry guard. (The Principal Facts concerning Norwegian 
Territorial Waters, p. 5.) 

The early claims as to exclusive rights in fisheries off 
the shore seem to have been acquiesed in by other mari- 
time states and other states made similar claims. When 
these claims overlapped, conflicts arose and were often 
adjusted by treaties. The Scandinavian states main- 
tained the 4-mile limit as a rule and before the World 
War regarded this as the neutral belt in time of war. 



102 BELLIGERENCY AND MARITIME JURISDICTION 

The report of the committee also says after referring to 
treaties of the fifteenth century : 

During the two centuries then ensuing, the Kings of Norway 
felt induced to depart gradually from their old policy of claim- 
ing dominion over these Northern waters, and confined them- 
selves by degrees to asserting sovereignty over certain stretches 
of water on the coasts. Finally, the range of vision was in 
certain respects considered and maintained as the limit of Nor- 
wegian territorial waters, also as regards the Northern seas. 
According to a Royal Decree of 20th June, 1691, the entire sea 
between Norway and Jutland, outside the range of vision from 
land, was to be considered as neutral waters. Further, by a 
treaty of December, 1691, between Norway and Denmark, on 
the one part, and Great Britain and the Netherlands on the other 
part, it was expressly stipulated that enemies of the two latter 
countries were not to be allowed to capture vessels belonging to 
the subjects of these countries within sight of any land belonging 
to the Danish Norwegian King. The Admiralty likewise applied 
this boundary limit in connection with the maintenance of neu- 
trality. The range of vision was reckoned as 4 or 5 geographical 
miles from the outermost islets. (Ibid., p. 47.) 

The " Bangor? 1915.— On March 14, 1915, the Bangor, 
a steamship flying the Norwegian flag and apparently 
under control of a German agent, was met at the mouth 
of the Strait of Magellan by a British vessel of w^ar and 
put in charge of a prize crew. The Bangor was then 
taken to the Falkland Islands. Before the prize court 
the owners admitted liability to condemnation i; unless 
she was immune from capture on the technical ground 
that she was at the time in waters alleged to be terri- 
torial waters of a neutral State." 

The vessel was captured in the Strait of Magellan. Accord- 
ing to the entry in the log she was captured when she was in 
the middle of the Strait of Magellan, about opposite Port Tamar 
anchorage. This agreed with the statement of the British naval 
officers. The Strait of Magellan is admitted to be 7 miles wide 
at that place. Strictly, therefore, the middle would not be 
within 3 miles of the land on either side. 

The ship's master gave evidence that he took bearings which 
fixed his position much nearer the south shore than the line 
midway between the land on the north and south sides. His 



THE " BANGOR* ' 103" 

evidence is not worthy of any credence, and I cannot accept any 
part of it as being true. Accordingly, if it is material to estab- 
lish that the capture took place within 3 miles, or a marine 
league, of either shore, the claimants have not proved to my 
satisfaction that it did. 

The limits of territorial waters, in relation to national and 
international rights and privileges, have of recent years been sub- 
ject to much discussion. It may well be that the old marine 
league, which for long determined the boundaries of territorial 
waters, ought to be extended by reason of the enlarged range of 
guns used for shore protection. This case does not, in my view, 
call for any pronouncement upon that question. I am content to 
decide the question of law raised by the claimants upon the as- 
sumption that the capture took place within the territorial 
waters of the Republic of Chile. 

This assumption, of course, does not imply any expression of 
opinion as to the character of the Strait of Magellan as between 
Chile and other nations. 

This strait connects the two vast free oceans of the Atlantic 
and the Pacific. As such, the strait must be considered free for 
the commerce of all nations passing between the two oceans. 

In 1879, the Government of the United States of America de- 
clared that it would not tolerate exclusive claims by any nation 
whatsoever to the Strait of Magellan, and would hold responsible 
any Government that undertook, no matter on what pretext, to 
lay any impost on its commerce through the strait. 

Later, in 1881, the Republic of Chile entered into a treaty with 
the Argentine Republic by which the Strait of Magellan was de- 
clared to be neutralized for ever, and free navigation was guar- 
anteed to the flags of all nations. 

I have referred to these matters in order to show that there is 
a right of free passage through the Strait of Magellan for com- 
mercial purposes. It is not inconsistent with this that during war 
between any nations entitled to use it for commerce the Strait of 
Magellan should be regarded in whole or in part as the territorial 
waters of Chile, whose lands bound it on both sides. ([1916] 
P. p. 181 ; 5 Lloyd's Prize Cases, pp. 308, 313.) 

While the court assumed for the purpose of this case 
that the Bangor was within territorial waters, it was 
stated this was a matter between the neutral and bel- 
ligerent state and did not affect the rule relating to cap- 
ture as between the belligerents, and the vessel and cargo 
were condemned. 



104 BELLIGERENCY AND MARITIME JURISDICTION 

The " Dresden" 1915. — One of the cases which arose 
in the first year of the World War gave rise to much 
discussion. This was the case of the Dresden, a German 
cruiser anchored, within 500 meters from the shore, in 
Cumberland Bay, in the island of Mas-a-Tierra, belong- 
ing to the Republic of Chile. The British fleet attacked 
the Dresden. The British Government stated they were 
" prepared to offer a full and ample apology," and then 
intimated that they were aiding in maintaining Chilean 
neutrality, etc., though affirming that they did " not 
wish to qualify the apology." The correspondence at 
the time, which was important, was as follows : 

The Chilean Minister to Sir Edward Grey 

(Received March 26) 
(Translation.) 
Sir, 

In compliance with instructions from my Government. I liave 
the honour to inform your Excellency of the facts which led 
to the sinking of the German cruiser Dresden in Chilean terri- 
torial waters, as they appear to be established by the informa- 
tion in the possession of the Chilean Government. 

The cruiser cast anchor on the 9th March in Cumberland Bay, 
in the island of Mas-a-Tierra, belonging to the Juan Fernandez 
group, 500 metres from the shore, and her commander asked the 
Maritime Governor of the port for permission to remain there 
for eight days for the purpose of repairing her engines, which 
were, he said, out of order. The Maritime Governor refused to 
grant the request, as he considered it unfounded, and ordered 
the captain to leave the bay within 24 hours, threatening to 
intern the cruiser if her stay were prolonge"d beyond that period. 
Upon the expiry of the time stated the Maritime Governor pro- 
ceeded to notify the captain of the Dresden that he had incurred 
the penalty imposed, and he immediately reported the situation 
which had arisen to the Governor of the Republic. Meanwhile 
on the 14th March, a British naval squadron, composed of the 
cruisers Kent and Glasgow and the armed transport Orama, ar- 
rived at Cumberland Bay and immediately opened fire upon the 
Dresden while she lay at anchor. The Maritime Governor who 
was making his way towards the Glasgow in order to carry out 
the usual obligations of courtesy, was compelled to return to land. 



THE " DRESDEN"" 105 

The Dresden hoisted a flag of truce, and despatched one of her 
officers to inform the Glasgow that she was in neutral waters, 
a circumstance disregarded by the British naval squadron, which 
summoned the Dresden to surrender, warning her that if she re- 
fused she would be destroyed. The captain of the Dresden then 
gave orders to blow up the powder magazine and sink the ship. 

The act of hostility committed in Chilean territorial waters by 
the British naval squadron has painfully surprised my Government. 

The internment of the Dresden had been notified to her cap- 
tain by the Maritime Governor of Juan Fernandez, and the Gov- 
ernment of the Republic, having been informed of what had 
occurred, would have proceeded to the subsequent steps had it 
not been for the intervention of . the British naval squadron. 
Having regard to the geographical position of the islands of Juan 
Fernandez and to the difficulty of communication with the main- 
land, the only authority able to act in the matter did everything 
possible from the outset, and the internment of the Dresden was 
as effective and complete as the circumstances would permit 
when she was attacked by the British naval squadron. Even 
supposing that the British force feared that the Dresden in- 
tended to escape and to ignore the measures taken by the Mari- 
time Governor of Juan Fernandez, and that this apprehension 
was adduced as the reason which determined its action, it should 
still be observed that the close watch which the British naval 
squadron could itself exercise precluded the possibility of the 
attempt. Moreover, no such eventuality was contemplated by 
the British squadron which, as I have said, did not give the 
Maritime Governor of Mas-a-Tierra the opportunity of explain- 
ing to the naval officer in command of the island the state of the 
Dresden in Cumberland Bay. The officer in command of the 
squadron acted a priori without pausing to consider that his 
action constituted a serious offence against the sovereignty of 
the country in whose territorial waters he was at the time. The 
traditions of the British navy are such that I feel convinced 
that if the officer who commanded the British squadron had 
received the Maritime Governor, who was going on board his 
ship in the fulfilment of his duty, and had been informed of the 
state of the interned vessel, he would not have opened fire upon 
her and would not have brought about the situation which now 
constrains my Government, in defence of their sovereign rights, 
to formulate the most energetic protest to His Britannic 
Majesty's Government. 

Your Excellency will not be surprised that the attitude of the 
naval squadron should have aroused such deep feeling in Chile 
if you bear in mind the fact that the British warships composing 



106 BELLIGERENCY AND MARITIME JURISDICTION 

it had received, shortly before and upon repeated occasions, con- 
vincing proofs of the cordial friendship which unites us to Great 
Britain, and which finds its clearest and strongest expressi n in 
our respective navies. They had been supplied in the ports of the 
republic with everything which it was permissible for us to fur- 
nish consistent with our neutrality in the present European con- 
flict. Nothing, therefore, could be a more painful surprise to us 
than to see our exceedingly cordial and friendly attitude repaid 
by an act which bears unfortunately all the evidences of con- 
tempt for our sovereign rights, although it is probable that nothing 
was further from the minds of those by whom it was unthinkingly 
committed. 

Nor will your Excellency be astonished that my Government 
should show themselves to be very jealous of the rights and pre- 
rogatives inherent in the exercise of sovereignty. Nations which 
lack powerful material means of making their rights respected 
have no other guarantee and protection for their life and pros- 
perity than the clear and perfect understanding and the exact and 
scrupulous fulfillment of the obligations incumbent upon them 
towards other nations, and the right to demand that other nations 
shall equally observe their duties towards them. Few nations 
have given more convincing proofs than Great Britain of their 
desire to comply with international obligations and to require 
compliance from others, and few have shown more eloquently 
their respect for the rights and prerogatives both of great and 
small nations. These facts convince my Government that His 
Britannic Majesty's Government will give them satisfaction for 
the act committed by the British naval forces of a character to 
correspond with the frankly cordial relations existing between 
them. Nothing could be more deeply deplored by the Chilean 
Government than that the traditional bonds of friendship uniting 
the two peoples, which my Government value so highly and upon 
which they base so many hopes of new and mutual benefits, should 
fail to derive on this occasion additional strength from the test 
to which circumstances have subjected them. 
I have, &c. 

Agustine Edwards. 

No. 2. Sir Edward Grey to the Chilean Minister 

Foreign Office, March SO, 1915. 
Sir, 

HIS Majesty's Government, after receiving the communication 
from the Chilean Government of the 26th March, deeply regret 
that any misunderstanding should have arisen which should be a 
cause of complaint to the Chilean Government; and, on the facts 



the "dresden" 107 

as stated in the communication made to them, they are prepared 
to offer a full and ample apology to the Chilean Government. 

His Majesty's Government, before receiving the communica- 
tion from the Chilean Government, could only conjecture the 
actual facts at the time when the Dresden was discovered by the 
British squadron ; and even now they are not in possession of a 
full account of his action by the captain of the Glasgow. Such 
information as they have points to the fact that the Dresden had 
not accepted internment, and still had her colours flying and her 
guns trained. If this was so, and if there were no means avail- 
able on the spot and at the moment for enforcing the decision of 
the Chilean authorities to intern the Dresden she might obviously, 
had not the British ships taken action, have escaped again to 
attack British commerce. It is believed that the island where 
the Dresden had taken refuge is not connected with the mainland 
by cable. In these circumstances, if the Dresden still had her 
colours flying and her guns trained, the captain of the Glasgow 
probably assumed, especially in view of the past action of the 
Dresden, that she was defying the Chilean authorities and abusing 
Chilean neutrality, and was only awaiting a favourable oppor- 
tunity to sally out and attack British commerce again. 

If these really were the circumstances, His Majesty's Govern- 
ment cannot but feel that they explain the action taken by the 
captain of the British ship ; but, in view of the length of time that 
it may take to clear up all the circumstances and of the communi- 
cation that the Chilean Government have made of the view that 
they take from the information they have of the circumstances, 
His Majesty's Government do not wish to qualify the apology that 
they now present to the Chilean Government. 
I have, &c. 

E. Grey. 

(British Parliamentary Papers, Misc. No. 9 [1915], [Cd. 7859].) 

Inviolability of neutral waters. — Neutral waters, while 
generally open to innocent passage of belligerent vessels 
in time of war, may be closed and have been closed to 
vessels of war and vessels assimilated thereto. 

A vessel in distress is, however, permitted to enter and 
is granted necessary asylum and may make such 
repairs as are needed to make the vessel seaworthy. If a 
vessel enters neutral waters to escape capture, the neutral 
state is usually under obligation to intern the vessel after 
24 hours' sojourn. 

138120—32 8 



103 BELLIGERENCY AND MARITIME JURISDICTION 

A vessel of war might, from within neutral waters, 
resist an attack or a continuation of an operation, but 
when the vessel in neutral waters ceases operations or is 
no longer able to continue the resistance, no further 
belligerent action may be taken. 

While it might be possible to permit a vessel of war 
•of one belligerent to rescue the distressed crew- of a 
vessel of war of another belligerent even in territorial 
waters of a neutral, this would be merely as an act of 
humanity and not as an act of war and the crew should 
be turned over to the neutral state or should be merely 
detained. 

The " Thor? 191Jf.—ln the Koyal Court of St. Lucia 
on October 30, 1914, a decision was rendered in the case 
of the Thor, a Norwegian steamer loaded with coal origi- 
nally chartered by the Inter-American Steamship Line; 
later receiving on board a German supercargo in the per- 
son of one Weiler, a chief petty officer of the German 
Naval Reserve who gave the captain of the Thor the 
following letter: 

We beg to inform you that we have re-let the steamer for 
about three months to the Hamburg- Amerika Line, of New York, 
and in accordance with clause 12 they will send a supercargo 
with your steamer whose instructions you will please follow. 
We request you to do all possible for the interests of the Ham- 
burg- Amerika Line ; and their superintendent, who goes with the 
steamer, has instructions to allow you very liberal gratuities. 

The judge in this case after considering that from 
August 9 to August 26 the Thor was " steaming up and 
down with two German colliers and one other neutral 
collier chartered by a German firm, all clearly, waiting 
for something to coal " said : 

It therefore becomes necessary to consider whether her be- 
haviour amounted to unneutral service, and for that purpose to 
ascertain what modification, if any, has been effected by the 
Declaration of London in the law on that point. 

The English rule was this : "A neutral vessel chartered or em- 
ployed by a belligerent Government to carry a cargo on its 



SUBMERGED REEFS 109 

behalf and acting under the orders or direction of that Govern- 
ment or of its officers is liable to condemnation as an enemy ship, 
together with the cargo so carried " — The Rebecca 1811 (2 Acton, 
119). The formula submitted to the Conference was more epi- 
grammatic, but equally effective ; it provided that merchant ves- 
sels " entierement ou specia lenient au service du belligerant 
ennemi " should lose their neutral character. (1 Trehern, British 
and Colonial Prize Cases, p. 229.) 

The Thor was condemned as lawful prize. 

Liability of the "Petro? — The nationality of the 
Petro, the tanker from which the cruiser Xerxes of State 
X is refueling is not stated. If it was a naval tanker it 
would be liable to the same treatment as a vessel of war. 
If it w^as a tanker owned by private enemy parties, it 
would be serving as an auxiliary and would be liable to 
be sunk. If it was a neutral tanker it would be similarly 
liable as engaged in unneutral service. Such a neutral 
vessel has so far identified itself with the belligerent as 
to render itself liable to the same treatment as a bel- 
ligerent vessel. 

Submerged reefs. — While there have been arguments 
from time to time in favor of the determination of juris- 
diction over coastal waters based on navigability or upon 
depth, such arguments have not been generally accepted. 
If the principle of navigability had been accepted, the 
problem of fixing the depth line for draft of ships would 
have had many analogies to the problem of the range of 
cannon shot. There would have been other problems 
arising from the changing and shifting depths of waters 
along certain coasts. 

In August, 1925, certain questions arose in the case" of 
United States v. Henning et al. in regard to the status 
of Sea Horse Reef, 16 miles off the west coast of Florida. 
It was contended that this was a part of the coast of the 
United States, but the court did not " concede this con- 
struction." (7 Fed. 2d series, p. 488.) 

Neutral rights and duties. — From the varied practice 
and theories, it is apparent that there is not complete 
agreement as to jurisdiction over waters off a coast dotted 



110 BELLIGERENCY AND MARITIME JURISDICTION 

with islands, reefs, etc. By article 1 of XIII Hague 
Convention belligerents are bound to respect the rights 
of neutral powers. It can not be presumed that a vessel 
taking fuel in neutral jurisdiction is necessarily exceed- 
ing its rights, but by article 25 of XIII Hague Con- 
vention, 

A neutral Power is bound to exercise such surveillance as the 
means at its disposal allow to prevent any violation of the pro- 
visions of the above Articles occurring in its ports or roadsteads 
or in its waters. (1908, Naval War College, International Law 
Situation, p. 220.) 

If a belligerent protests to a neutral that an enemy is 
violating a provision of the laws of neutrality and the 
neutral takes no action, the belligerent may presume that 
the neutral is not able to prevent the violation or that it 
does not regard the contention as valid. A neutral is 
not obliged to assume jurisdiction along its coast beyond 
3 miles. The belligerent must then determine what ac- 
tion to take for its own protection and if under ordinary 
conditions no possibility of violation of neutral rights 
were involved the belligerent might lawfully attack its 
enemy. 

If one belligerent attacks another, even within neutral 
jurisdiction, the attacked belligerent may lawfully defend 
itself from such attack and so far as possible render its 
enemy unable to continue operations. 

Protective jurisdiction. — That a certain degree of pro- 
tective jurisdiction may in specific case extend beyond 
the 3-mile jurisdiction is admitted. In 1864 in referring 
to the French position that the Alabama and Kearsarge 
should not engage in such proximity to the French coast 
as would put it in danger from shell fire, the United 
States, while heeding the request, did not admit that 
French jurisdiction extended beyond 3 miles. (1904, 
Naval War College, International Law Situations, pp. 
132-134.) In the same year the question was again 
raised when the U. S. S. Rhode Island fired upon the 



SICK, WOUNDED, AND SHIPWRECKED 111 

Margaret and Jessie off Eluthera and the British Gov- 
ernment expressed the opinion : 

that vessels should not fire toward a neutral shore at a less dis- 
tance than that which would insure shot not falling into neutral 
waters, or in a neutral territory. (Ibid., p. 135.) 

Belligerent control of neutral vessels. — A belligerent is 
entitled to humane treatment in time of distress. This 
was provided for in the 1907 Hague Convention for the 
Adaptation to Naval War of the Principles of the Ge- 
neva Convention. For example, article 9 is to the follow- 
ing effect : 

Belligerents may appeal to the charity of the commanders of 
neutral merchant ships, yachts, or boats to take on board and 
tend the sick and wounded. 

Vessels responding to this appeal, and also vessels which have 
of their own accord rescued sick, wounded- or shipwrecked men, 
shall enjoy special protection and certain immunities. In no case 
can they be captured for having such persons on board, but, apart 
from special undertakings that have been made to them, they re- 
main liable to capture for any violations of neutrality they may 
have committed. (1908, Naval War College, International Law 
Situations, p. 205.) 

This article 9 refers to neutral A'essels which of their 
own accord take on board sick, wounded, or shipwrecked 
men and to neutral vessels which on request take on 
board sick and wounded. 

The reference to " sick and wounded " in the first 
paragraph and to " sick, wounded, or shipwrecked " in 
the second paragraph of article 9 was not by inadvert- 
ence but was considered at The Hague Conference in 
1907. M. Louis Renault, the reporter for the subcom- 
mission which had this convention in charge, in the 
discussion, savs : 

In 1899 it was asked what should be the fate of the sick, 
wounded, and shipwrecked. They may, as a matter of fact, be 
in very different situations: on hospital ships of the State, on 
hospital ships of national or neutral relief societies, or on mer- 
chant vessels of hostile or neutral nationality. There has been 
much discussion on this point, and very different solutions have 



112 BELLIGERENCY AND MARITIME JURISDICTION 

been introduced into the additional articles of 1868. After ma- 
ture reflection, we agreed to base our action on a very simple 
principle : A belligerent who duly has in his possession com- 
batants of the adversary has a right to make them prisoners of 
war ; if the combatants are sick or wounded, it is his duty to 
care for them. It is only necessary to apply this principle to 
the various cases which may arise : A cruiser meets a hospital 
ship (batiment hopital) or a "hospitable" ship (batiment hos- 
pitalier), and has a right to search it and supervise what takes 
place thereon. It finds sick, wounded, and shipwrecked persons, 
and has an absolute right to consider them as prisoners. In 
most ca"ses, as far as the sick and wounded are concerned, it is 
entirely to the advantage of the cruiser to leave them where 
they are, for it would have to transport and care for them. But 
it may also happen that it will be in its interest to treat some 
of them as prisoners ; this is more particularly the case with 
the shipwrecked persons. It matters little on board of what 
vessel these sick, wounded, or shipwrecked persons are found, 
provided they are duly in the possession of the enemy. This is 
the case whenever a belligerent cruiser meets on the high seas 
any vessel other than a neutral war vessel. (3 Proceedings of 
the Hague Peace Conferences, Carnegie Endowment for Inter- 
national Peace, p. 568.) 

Salvaging. — Salvaging of public ships by private 
agencies may be on the same basis as the salvaging of 
private ships. The difficulties that have most often arisen 
have been in connection with the payment for such serv- 
ices when it has been impossible for the salvor to bring 
action against the public ships. As was said in the 
British court in the case of the Porto Alexandre ( [1920] 
P., p. 30.) : 

These are matters to be dealt with by negotiations between 
governments, and not by governments exercising their power to- 
interfere with the property of other States contrary to the prin- 
ciples of international courtesy which govern the relations be- 
tween independent and sovereign States. 

That salvaging operations of a neutral on the high sea 
in behalf of one belligerent should not interfere with the 
exercise of the rights of the other belligerent as against 
his enemy is admitted without argument. Indeed the 
neutral salvaging vessel must to escape risk avoid any 



SALVAGE AND RESCUE 113 

participation in the hostilities and may act only for the 
preservation of the vessel of war against the forces of 
nature. The salvaging must be clearly distinguished 
from obligations which might arise under the Hague 
Convention for the Adaptation to Naval War of the 
Principles of the Geneva Convention. 

Discussion, 1930. — Certain matters in regard to the 
general nature of salvage arose in the consideration of 
Situation II and the discussion may be found in Naval 
War College, International Law Situations, 1930, pages 
84-90. 

Obligation to rescue. — While the obligation of a neu- 
tral private vessel to rescue shipwrecked personnel of a 
vessel of war may be recognized, there is no obligation to 
take the personnel from a vessel of war in anticipation 
that it may be sunk by an enemy. 

Vessels of war are subject to the risks of war. 

Neutral private vessels are under no obligations to 
participate to the advantage of either belligerent. 

The fact that a vessel of war of one belligerent can not 
accommodate on board the personnel of an enemy vessel 
of war does not place a neutral under special obligation 
to either party. 

By article 16 of the 1907 Hague Convention for the 
Adaptation to Naval War of the Principles of the Geneva 
Convention, it is prescribed that : 

After every engagement, the two belligerents, so far as mili- 
tary interests permit, shall take steps to look for the ship- 
wrecked, sick, and wounded, and to protect them, as well as 
the dead, against pillage and ill treatment. (1908, Naval War 
College, International Law Situations, p. 207.) 

SOLUTION 

(a) As neutral State R takes no action, the action of 
submarine Y SO is lawful. The defense of cruiser 
Xerxes is lawful, but the taking of the crew of the 
beached Y 50 as prisoners of war is not lawful. 

State X has no ground for valid protest. 



114 BELLIGERENCY AND MARITIME JURISDICTION 

State Y may protest against the taking of the crew 
of Y 50 as prisoners of war. 

State R may protest against the action of the Xerxes 
in entering its waters and making the crew of Y 50 
prisoners of war. 

(b) The place of salvaging is in the high sea and the 
salvaging operations are lawful. The salvaging vessel is 
under obligation to cease operations but under no obli- 
gation to take the crew of the Xenophon on board. The 
relative weakness of the submarine Y 51 gives it no right 
to demand exceptional services from the salvaging vessel. 
The Xenophon's armament and boats being intact, the 
conditions for which the Hague-Geneva Convention pro- 
vides have not arisen, and the salvaging vessel may de- 
cline to take any action except to discontinue salvaging 
operations unless upon agreement of all parties. 



INDEX 



Page- 
Adams, Clias. Francis, on supply of coal 80 

Adjacent zone 68, 69 

Administrative zone, contiguous 4& 

Aerial communication 4 

Aerial jurisdiction 2,7,22,47 

Aerial navigation 73 

Defined 1 

Early regulation 2 

Freedom of 22,62 

Aerial observation, in neutral territory 47 

Aerial rules, development of 73 

Aerial zones : 

Commission of Jurists, 1923, on 7 

Three-mile jurisdiction 7 

Aerodromes 6, 23 

Aeronautical Commission, 1919 22 

Air navigation convention, 1919 3 

Air reconnaissance 33 

Air space: 

Defined 2 

Jurisdiction in 8, 47 

Regulations before 1914 38 

Sovereignty over 6 

Aircraft : 

Belligerent — 

Disabled, salvage of . 21 

Fueling of 13: 

Military, on war vessel 47 

In neutral airport 42 

In neutral jurisdiction 8 

In Panama Canal Zone 5 

Internment of 30 

Salvage by neutral private vessel 29 

Seaplane 14 

Carriage of arms and munitions 7" 

115 



116 INDEX 

Aircraft — Continued. Page 

Civil, transformation of 10,21 

Germany and, Versailles treaty on 6 

In neutral jurisdiction 8, 73 

Indemnification 3.23 

Indirect limitation 5 

Internment of 18,30 

Military — 

In Bosphorus and Dardanelles 63 

Liberation of crew of salvaged 20 

Nationality of 22 

Neutrality and 1 

On board warship 32, 47 

Regulations for 7 

Rescue of seaplane 31 

Registration 4 

State 23 

Aircraft carriers 5, 63 

Aircraft personnel, belligerent, internment of rescued 30 

Aircraft pilots, licensing of 23 

Airmen, belligerent, release of by neutral government 16 

Airport, neutral 13, 42 

Airworthiness . 22 

Alabama and Kearsarge, the, case of 110 

Alaska, boundary line 59 

Alluvium, principle of 44 

Ambulances, flying 32 

Ammunitions 88 

Anna, the, 1805, case of 44,98 

Archipelagoes 33, 51 

Maritime jurisdiction and 48, 64 

Portuguese Government 49 

Sweden 37, 50 

Argentina, treaty with Chile, 1881 56 

Armaments, warlike, on civil aircraft 10, 21 

Armed forces, aircraft as part of 6 

Arms and munitions, carriage by aircraft 7 

Australia : 

Contiguous belt 46 

Great Barrier Reef 35 

Auxiliary craft 29, 109 

Aviation : 

Regulation of, 1919 22 

Subsidies in aid of 3 



INDEX 117 

Page 

Balloons, early regulations of 2 

Bangor, the, case of 56, 102 

Base of communications 85 

Base of operations 25,76,81,83,87 

Neutral harbor as 15 

Use of airport as 13 

Base of supplies 85 

Bayard, T. F.. Mr., Secretary of State, on coastal jurisdic- 
tion 65 

Bays : 

Delaware 97 

Historical 34 

Passamaquoddy 61 

Territorial jurisdiction of 48, 72 

Belgium, maritime jurisdiction 67 

Belligerency, and maritime jurisdiction 94 

Belligerent rights 91 

Black Sea, navigation of 53 

Blockade, in Bosphorus and the Dardanelles 62 

Bosphorus and Dardanelles 53, 100 

Navigation of 61 

Boundary, international 61 

Brazil, repairs in neutral waters 26 

Bristol Channel 57,71 

British foreign enlistment act, 1870 86 

Bryan, W. J., Secretary of State, on hydroplanes as vessels 

of war 11 

Canada, maritime jurisdiction 67 

Capture : 

In neutral waters 97 

Right of, German ordinance on 100 

Caroline, the, case of 90 

Chile : 

Marginal sea 68 

Neutrality, and Great Britain 104 

Straits of Magellan 55, 103 

China, jurisdiction over Strait of Laimun 59 

Closed waters 54, 107 

Coal, supply of 80 

Coaling 80, 84, 95, 108 

Cockburn, Sir Alexander, on coal in neutral port 82, 84 

Codification of international law : 

Harvard Law School research 64 

League of Nations committee, 1926 48 



118 INDEX 

Page 
Colliers 79, 86, 96 

Colombia, coastal jurisdiction 68 

Colon, city of 5 

Combatants, shipwrecked, rescue of 17 

Commercial navigation 69 

Commission of Jurists, 1923 : 

On aircraft in neutral jurisdiction 32,46 

On neutral duties 30 

Commission of the straits, treaty of Sevres 62 

Congo River 100 

Contraband 86. 95 

Conditional 11 

Coral reefs. See Reefs. 

Corfu and Paxe 100 

Crocker, Henry G., extent of marginal sea 40 

Cuba, jurisdiction of rocks, reefs, and keys 35 

Danish sounds and belts 54 

Danish Sound dues 58 

Danube, river, mouths of 10O 

Declaration of London , 96 

Delaware Bay, capture in 97 

Denmark : 

Fuel depots in waters of 85 

Maritime jurisdiction 68 

Neutrality rules, 1912 37 

Sound dues, agreement with United States oo 

Detention, British seaplane by Holland 14, 18 

Deutschland, the, case of 75 

Disarmament Conference, 1930, on armaments of civil air- 
craft 9 

Dresden, the, case of 104 

Due diligence 24, 91 

E 17, British submarine, case of 24 

Egypt, maritime jurisdiction 68 

Enemy forces, in neutral territory 15 

Essex, the, case of 97 

Estonia, marginal sea 68 

Fagernes, the, case of 71 

Fauna and flora 66 

Finland, marginal sea 68 

Finmarken, maritime frontier of 38 



INDEX 119 

Page 
Fish, Hamilton, Secretary of State, on maritime jurisdic- 
tion 36 

Fisheries : 

Norwegian regulation of 39, 101 

Sedentary, British exercise of jurisdiction 45 

Fitting out and arming 13, 24, 96 

Fjords 51 

France : 

And Great Britain: Strait of Gibraltar 61 

Territorial waters 44, 68 

Decree, 1912 38,66 

Fuca straits 59 

Freedom of the air 2,5 

Fuel depots 85 

Fueling 79 

General Armstrong, the, case of 97 

Geneva arbitration tribunal, 1873 80,87,96 

Germany : 

Aircraft, as conditional contraband 12 

Aircraft, Versailles treaty on 6 

Marginal seas 67 

Geier, the, case of 26 

Glasgow, the, case of 25 

Grange, the, case of 97 

Great Britain : 

And China : Jurisdiction over Laimun Strait 59 

And France : Strait of Gibraltar 60 

British-Dutch correspondence, detention of seaplane 14, 18 

Note on submarines, 1916 74 

Proposal on repairs on belligerent warships 25 

Territorial waters, extent of 45, 67 

Violation of Chilean neutrality 106 

Greece : 

Commission of the Straits 62 

Marginal seas 69 

Guerra, Prof. J. Guillermo " Les Eaux territoriales dans les 

Detroit " 59 

Hague Convention V 47 

Hague Convention X 14 ? 24 

Hague Convention XIII 10,12,38,47,66,78,110 

Harvard Law School, research in international law 52, 64 

Headland doctrine 65 

Higgins, Pro! Pearce, on straits of Fuca 60 



120 INDEX 

High seas: Page 

Contiguous to territorial waters 45, 68 

Rescue of shipwrecked belligerents on 17 

Holland, Professor, on coaling 86 

Hong Kong 59 

Honolulu, as neutral port 27 

Hostile acts 47, 99, 105 

Hospital ships 111 

Hydroplanes : 

As vessel of war 11 

Compared to submarine 42 

Iceland, on marginal seas 69 

Increment, principle of 44 

India, on marginal seas 46,69 

Institute of International Law : 

1892, on regime of straits 58 

1906, on regulation of wireless telegraph 2 

1927, on freedom of the air 2 

International airways 4 

International law 17, 20, 24, 77, 83 

Internment 78 

Aircraft and its personnel 30 

Aircraft in Dutch port 18 

British-Dutch correspondence on 14 

Crew of submarine 23 

General rules of 15 

Irish Free State, on marginal sea 69 

Islands : 

Territorial waters and 37,44,48,64 

Norwegian claims 52 

Portuguese claims 49 

Swedish claims 50 

Italy : 

Aerial jurisdiction zone 8 

Marginal seas 68 

Neutrality zone, 1909 38 

Japan : 

Marginal seas 69 

Repairs in neutral waters 25 

Jurisdiction : 

Aerial. See Aerial jurisdiction. 



INDEX 121 

Jurisdiction — Continued. I'age 

Maritime 34, 71 

Belligerency and 94 

Decrees 38 

Exercise of, in contiguous zone 4G, 68 

Hostilities in 98 

United States and Spain, 1S63 36 

Protective 110 

Keys, Florida 36 

Laimun, strait of 59 

Latvia, on marginal sea 69 

League of Nations : 

Codification of international law 45 

Commission for disarmament 9 

Council 62 

Levant, the, case of 97 

Limitation of armament, Versailles treaty 5 

Locksun, the, case of 26,28 

Louis Napoleon, award by, 1852 97 

Lubec Narrows Channel 61 

Marginal air belt 9 

Marginal sea (see also Territorial waters) 43 

Extent of 39,67 

Neutrality in 79 

Navigation, freedom of 62 

Netherlands : 

Internment, British seaplane, 1916-17 14, IS 

Position on submarines 78 

Territorial waters 69 

Neutral airport 13, 42 

Neutral belt, Scandinavian States 101 

Neutral jurisdiction 91, 95 

Aircraft in 8, 14, 29, 73 

Neutral ports : 

Belligerent use of 13 

Enemy submarines in 74 

Repairs in 24 

Neutral ports and waters 78,87,96 

Aircraft in 32 

Belligerent use of 25 

Belligerent warships in 15, 25 

Inviolability of 107 

Supplies in §,q 



122 INDEX 

Page 

Neutral rights and duties 43, 78, 82, 91, 109 

Neutral sea 56 

Neutral territory 24 

Enemy force in 15 

Inviolability of 82 

Sending out of boats from 99 

Neutrality : 

Aircraft and 1 

Differing rules 42 

Impartial 12 

In territorial waters 33 

Maritime 63 

Scandinavian rules, 1912 37 

United States proclamation, 1914 5 

Violations of 78, 107, 110 

Neutrality act, 1794, United States 97 

Neutrality proclamation, 1914 12 

Neutrality zone : 

Italian 38 

Scandinavian 101 

Niger River 100 

Norway : 

Archipelago of Spitzbergen 65 

Entrance of submarines 78 

Fisheries 39 

Neutrality rule, 1912 37 

Territorial waters 38, 51, 69, 101 

Norwegian maritime frontier commission 40 

Ortolan, M., on inviolability of neutral territory 83 

Outbreak of war, enemy aircraft on 4 

Panama, city of 5 

Panama Canal Zone : 

Air navigation in 1 

Registration of aircraft in 4 

Neutrality of 5 

Passamaquoddy Bay 61 

Persons : 

Belligerent 21 

Internment of 23,31 

Shipwrecked 112 

Pilots, belligerent seaplane, rescue of 14 

Porto Alexandre, the, case of 112 



INDEX 123 

Portugal : Page 

On marginal seas 49 

United States claim against 97 

Prisoners of war 16 

Projectiles and explosives 43, 73 

Rebecca, the, case of 109 

Recruitment, in neutral waters 88 

Reefs: 

Coral 35, 101 

Not constantly submerged 39 

Submerged 94, 109 

Territorial waters and 35, 64 

Refueling 33, 93 

Renault, M. Louis, on sick, wounded, and shipwrecked 111 

Repairs, belligerent warships in neutral ports 25, 88 

Rocks : 

Exposed 94 

Territorial waters and 41, 51, 64 

Russia : 

Coastal seas 66 

Commerce on the Black Sea 53 

Russo-Japanese War 73 

Coaling 86 

Internment 29 

St. George's Channel 57 

Salvage 95, 112 

Of belligerent seaplane by neutral sailboat 17 

Schucking, Professor, on territorial waters 47 

Scott, Sir William, on extent of marginal sea 44 

Sea Horse Reef 109 

Sea of Marmora, navigation of 62 

Seaplane, belligerent 31, 14, 18, 74 

Self-defense 90 

Seward, W. H., Secretary of State, on maritime jurisdiction- 36 

Shipwrecked belligerents 14, 16, 31, 111 

Sick and wounded 111 

Skerry guard, Norwegian 41, 101 

South Africa, on 3-mile rule 67 

Sovereignty 2, 5, 22, 106 

Spaight, J. M., on belligerent aircraft 29 

Spain : Coastal jurisdiction of 36, 68 

Sperry, Admiral, on territorial waters 34 

Spitzbergen 65 

138120—32 9 



124 INDEX 

Straits : Page 

Connecting open seas 57 

Danish sounds and belts 55 

Harvard Law School research on 52 

Of Fuca 59 

Of Gibraltar 61 

Of Kalmar 51 

Of Magellan 25, 102 

Neutralized 103 

Treaty of 1848 56 

Status of 58 

Submarines, passage of 33 

Sweden on territorial waters of 50 

Territorial seas and 48 

Submarines : 

Aircraft and 33 

Allied attitude, 1916 76 

Commercial 75 

Enemy, in neutral ports 73 

In Bosphorus 63 

Neutral ; and belligerent warships 77 

Treatment of crew of 23 

Surface ships and 74 

Submarine base . 76 

Subsidies, government 3 

Suez Canal 100 

Supreme Council 21 

Sweden : 

Maritime jurisdiction 37, 50 

Neutrality rules, 1912 37 

Territorial waters : 

Administrative zone 49 

Air space over 3 

Belligerent use of 45 

British position, 1924 45 

Extent of 34, 56, 66 

Two mile 69 

Three mile (1 league) 34,40,43,65 

Four mile 68 

Five mile 66 

Six mile (2 leagues) 36,40,68 

Twelve mile 49 

Jurisdiction beyond 45, 68, 110 



INDEX 125 

Territorial waters — Continued. Page 

League of Nations Committee 45 

Marginal air-belt 9 

Neutral 33, 101 

Norwegian 38, 102 

Reefs, and 35 

Regulations before 1914 38 

Submarines in Swedish 37 

Texel, the, case of 23 

Thor, the, case of 108 

Treaty : 

Argentina and Chile 56 

Belgrade, 1739 53 

Copenhagen, 1857 60 

Great Britain and the United States, 1846 59 

Great Britain and the United States, 1908 61 

Lausanne, 1923 62 

Nanking, 1842 59 

Roskilde, 1658 51 

Sevres, 1920 54, 62 

United States and Panama, 1904 5 

Versailles, 1919 5 

Washington, 1871 24, 87 

Troops ; fugitive, internment of 15 

Troopships, in Bosphorus 63 

Turkey : 

Bosphorus and the Dardanelles, and 53, 63 

Black Sea and 53 

Commission of the Straits 62 

Twee Gebroeders, the, case of 99 

Twenty-four hour sojourn 32 

Unfriendly act 47 

United States: 

Aircraft, act on use of, 1926 6 

Executive order, 1929 7 

Bosphorus and Dardanelles, and 54 

Maritime jurisdiction 36,43,65 

Neutrality act, 1794 97 

Proclamation, 1914 5 

Repairs in neutral ports 26 

Straits of Magellan, attitude on 57 

Submarines and international law 76 

Danish Sound dues 54 



126 INDEX 

Page 

U. S. v. Henning et al 109 

U. S. S. Wachusett, the, case of 98 

Unneutral act 16 

Unneutral service 108 

Uruguay, on marginal seas 70 

U. S. S. R., on marginal seas 70 

Vessels : 

Fitting out and arming 12, 24, 96 

Merchant, submarine as 74 

Neutral — 

Belligerent aircraft salvaged by 29 

Charted by belligerent government 108 

Belligerent aircraft crew rescued by 20 

Rescue by 113 

Salvaging by 112 

War- 
Aircraft on 32,47 

Hydroplanes as 11 

In Bosphorus and Dardanelles 63 

Internment of 15 

Neutral submarines and 77 

Repairs in neutral waters 26 

Rescue by 108, 113 

Tender to 28 

Visit and search 31, 63, 100 

War, aircraft as instrument of 10 

War of 1812 97 

Washington treaty, 1871 24,87 

Washington treaty, 1922 5 

Webster, Daniel, Secretary of State, on right of self-defense. 90 

Yacht, royal 31 

o